Parents of children with darker skin lose IVF appeal

Image caption, The parents wanted compensation following a mix-up in the IVF process

Two children born with darker skin than their white parents following an IVF error are not entitled to damages for alleged negligence, a court has ruled.

The Court of Appeal backed an original finding that the children were not owed a duty of care during the process other than to be born healthy and well.

The parents had taken a case against an unnamed NI health trust.

They alleged negligence in the insemination which they said led to racial taunting and emotional distress.

'Different questions'

But rejecting their appeal against a High Court decision, Lord Justice Girvan said: "An error which results in the birth of a child suffering from real genetic defects raises quite different questions from those raised in the present case."

Instead of using a white donor as desired during IVF treatment in 2003, the mother's eggs were inseminated with sperm labelled "Caucasian (Cape coloured)" - a label given to a mixed-race community in a South African province.

The Trust used mislabelled donor sperm, resulting in the children having a different skin colour to their parents and each other.

Lawyers for the family had appealed a finding that no damage had been caused to the children and they suffered from no disability, loss or damage.

Dealing with the alleged negligence, the Court of Appeal considered whether a duty of care existed to the children and, if so, whether there had been any breach.

Lord Justice Girvan declared that the claim must fail because that the children cannot point to any damage or injury as a result of the trust's error.

'Boorish behaviour'

He said they have a normal and healthy existence having been born successfully and without mishap.

They cannot point to any physical or mental defect as a result of the process which led to their existence.

The judge stressed: "Having a different skin colour from the majority of the surrounding population and their parents cannot sensibly be regarded as damage or disability just as the adoption of a child of a colour different to that of the adopting parents could not by any stretch of the imagination be described as subjecting the adopted children to some form of detriment, injury or damage."

He added that abuse directed at the children because of their skin colour is due to "boorish and unacceptable behaviour" of others.

"In the pluralistic, compassionate and tolerant society in which we aspire to live there should be no room for such behaviour which flows from the inability of some to accept and tolerate differences in others.

"In the imperfect world in which we do live there will inevitably be some who will make unpleasant comments in relation to matters of differences in others, whether it be in respect of skin colour, religion, the colour of an individual's hair, the clothes they wear and their family background.

"The fact that such intolerant and offensive remarks are made does not mean that the recipient of the comments is damaged, injured or disabled by the factors which led the intolerant to make the comments."