Embryos do not have right to damages over skin colour

 

A (a minor), B (a minor) by C, their mother and next friend -v- A Health and Social Services Trust

High Court of Northern Ireland, Queen’s Bench division

Neutral Citation NIQB 108

Judgment was given by Mr Justice Gillen on October 13th, 2010

Judgment

Two children born through donor-assisted IVF did not have the standing to bring a case for damages for having been born with brown skin, due to their mother having been inseminated with sperm from the Cape coloured community in South Africa. Even if had they standing, Mr Justice Gillen said they had not suffered any damage, as they were healthy and normal children.

Background

The parents of the children are white, and were anxious that any children born as a result of the IVF treatment would have the same skin colour. The normal practice was that only sperm from “Caucasian” or “white” donors would be requested.

However, the defendant health trust inseminated the mother’s eggs with sperm from a donor labelled “Caucasian (Cape Coloured)”, referring to a community in South Africa derived from people of black, white and Malay origin, who can have skin colour of varying shades. The trust acknowledged that a correct label on the sperm had been misunderstood by a staff member. Two children were born from this process, and through their mother they issued claims for damages for personal injuries, loss and damage by reason of the alleged negligence of the defendant.

In their statement of claim they said they were obviously of different skin colour to their parents, and from each other, and as a result they had been subject to abusive and derogatory remarks from other children, causing them emotional upset and leading them to ask their parents if they were adopted. If they went on to marry a person of mixed race, any child born to them could have different skin colour to either parent.

In a preliminary application the parties sought answers to the following questions:

At the time of fertilisation did the defendant trust owe a duty of care to the children to take care that the sperm used was not “Caucasian (Cape Coloured)”, and if so, what was the nature of that duty?

At the time of fertilisation, were the plaintiffs persons to whom the defendant owed any legal duty?

Do they suffer any legally recognisable “loss and damage” connected to the alleged breach of the assumed duty of care?

Is it contrary to public policy to compensate them?

If it is appropriate to compensate them, how should this be measured?

Mr Justice Gillen first considered whether the plaintiffs had enough status to be owed a duty of care. He pointed out that after the 1976 Congenital Disabilities (Civil Liability) Act was passed, a child born alive but disabled had a right of action due to an occurrence which affected either parent’s ability to have a normal child, or affected the mother during pregnancy. In this case, neither plaintiff had a disability that would bring them within the Act. The process being undertaken by the defendant was designed to bring a child into being. The material time under consideration was the period leading up to and including the moment of conception, ie: the moment of the creation of life.

Decision

“The court is thus being asked to venture into the complexities of the creation of life involving a unique physical and scientific process, and to develop the law to deal with an instance where harvested eggs were fertilised with what has been termed inappropriate donor sperm,” Mr Justice Gillen said. “It seems to me that it is for Parliament to grasp the nettle of whether there ought to be duty of care owed in the circumstances postulated in this case . . . Absent the imprimatur of Parliament, I am not content to find that these plaintiffs have sufficient status to be owed a duty of care.”

He then went on to consider whether the plaintiffs had suffered actual damage. They were healthy, normal children, he said. “In a modern civilised society the colour of their skin – no more than the colour of their eyes or their hair or their intelligence or their height – cannot and should not count as connoting some damage to them. To hold otherwise would not only be adverse to the self-esteem of the children themselves, but anathema to the contemporary views of right-thinking people.”

He pointed out that the House of Lords had found that no damages may be recovered where a child is born healthy and without disability or impairment.

He said while the contention on their part that they carried genes inappropriate to their parentage should not be lightly dismissed, there was considerable weight to the contention that we are all the product of a mixed gene pool. Parental perception that some damage or injury had accrued to them largely because of the crass behaviour of others did not justify a conclusion that right-thinking members of society would behave in a such a manner.

He found that, because of the public interest surrounding the issue of IVF, his judgment should be published, providing that no detail could identify the plaintiffs.

The full judgment is on www.courtsni.gov.uk