Ed Madden, BL, looks at a Northern Ireland Court of Appeal case that considered a claim for damages brought by twins, based on the fact that the sperm donor used in their mother’s IVF treatment came from a different ethnic background to their parents.
A and B are twins born to their mother following IVF treatment. Now in their mid-teens, they are healthy and perfectly normal children. Their parents are of white Caucasian background. They expected that any children born as a result of the IVF process would have the same ethnic characteristics as their own.
Because of an error made by the Health and Social Services Trust, the sperm used in the process came from a donor from a different ethnic background to them; he came from the Cape, a coloured community in South Africa — a community derived from races of different skin colouring, including whites, blacks and Malaysians. By reason of this, the twins inherited skin colour characteristics that were much darker than those of their mother and non-biological father.
In October 2006 the twins, through their mother, brought High Court proceedings in negligence against the Trust. In their Statement of claim, they contended that because of their skin colouring, they had been subjected to abusive and derogatory comments and hurtful name-calling by other children, which caused them emotional upset. The children had also commented on the difference between the twins’ skin colour and that of their parents. As a result, their quality of life had been adversely affected.
The High Court dismissed the proceedings, Mr Justice Gillen holding that skin colouring could not amount to damage. He said that whatever about the position of the parents, the children had suffered no legal wrong demanding a remedy. He added: “Whatever rights an unborn child may have, they do not include a right to be born with a certain colour, size, sex or intelligence.” The children appealed the decision to the Court of Appeal in Northern Ireland.
When the matter came on for hearing in June 2011, counsel for the children argued that the trial judge was wrong in his conclusion that the claim against the Trust should be dismissed.
The duty of the Trust was to ensure that the mother’s eggs were fertilised by sperm from a “white donor”. The Trust breached the duty of care owed to the children who had, in consequence, suffered compensatable damage in the form of emotional upset. Since a wrong was done to them, they were entitled to an award of damages.
Bound to fail
Giving the judgment of the Court, Lord Justice Girvan said that the children’s claim was bound to fail for the simple reason that they could not point to any compensatable wrong, damage, injury or loss as a result of the mistake made by the Trust. They enjoyed a normal and healthy existence, having been born “successfully and without mishap”.
The fact that the children had a different skin colour to that of their parents and the majority of the surrounding population could not sensibly be regarded as damage or disability, no more than the adoption of a child of a colour different from that of the adopting parents could be so described.
Echoing what Mr Justice Gillen had said in the High Court, Lord Justice Girvan said that a genetic inheritance carried from previous generations might manifest itself in a different skin colour in a child born to parents of “an apparently different skin colour”. It would be perverse and objectionable to suggest that a child so born was in some way damaged, disabled or injured.
The judge said the fact that the children had been subjected to abusive comments because of their skin colouring arose as a result of boorish and unacceptable behaviour on the part of others. There should be no room for that type of behaviour, which results from the inability of some people to accept and tolerate differences in others.
However, “in the imperfect world in which we live”, there will inevitably be people who will make unpleasant remarks in relation to differences in others, whether such differences relate to skin colour, religion, or family background.
The fact that such remarks are made, however, does not mean that the recipients are damaged, injured or disabled as a result.
The Court, therefore, dismissed the children’s appeal.
Reference:  NICA 28.