Lawsuit over Children Born the Wrong Color After IVF

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Photographer: John McConnico/Bloomberg News

A Northern Irish High Court judge has declined to award damages to a family who sued a health trust that provided in vitro fertilization (IVF) services for using the wrong sperm and causing their two children to be born darker skinned than expected. The family, whose names were not released, claimed that the children had been mocked and discriminated against at school.

The mix-up occurred because the family had requested a white sperm donor and the children had been conceived with sperm that had been labeled “Caucasian (Cape Colored).” Apparently the technician who retrieved the sperm had not understood the label. (More on VIDEO — Filming Embreyos Improves Chances of Pregnancy).

That’s not that surprising, since Cape Colored is a not very widely used designation. (Even the august BBC defined it incorrectly.) It refers to a specific ethnic group within South Africa whose diverse ancestry includes slaves brought from the Dutch East Indies, indigenous Bushmen and related groups, as well as descendants of the offspring of black/white unions. Under apartheid, Cape Coloreds suffered dispossession, segregation and disenfranchisement, but had more rights than the black majority.

The confusion may also have resulted from the fact that many Cape Coloreds share last names (and often, direct lineage) with South Africans classified as white under apartheid.

Justice Gillen ruled that while he sympathized with the family’s plight, he could not rule that the IVF clinic had not fulfilled its “duty of care,” which is a legal term about acts people do that could conceivably hurt others, because the law was not specific on what that actually meant in regard to IVF. He suggested that the parents’ only legitimate expectations were for children born healthy and well. (More on Is the Catholic Church’s Argument Against IVF a Bit Holey?).

He added that he couldn’t award money for the emotional damage caused by the taunting either because “the presence of persons sufficiently misguided and cruel as to issue racist comments directed to these children is no basis for a conclusion that they are somehow damaged.” The health trust has already offered a settlement.

IVF, the developer of which was just awarded a Nobel Prize, has been and is still something of a legal frontierland. A woman in Arkansas tried unsuccessfully for 10 years to retain control of embryos created from her eggs and her ex-husband’s sperm. Despite the fact that she has paid embryo storage fees for 11 years, she cannot have the embryos implanted without her ex-husband’s consent. (More on Building a Brighter Kid? Consider IVF).

And then there’s the issue around immigration and IVF. If a baby is born to Americans abroad from an embryo created from two non-citizens, some courts suggest she’s an alien, some don’t.

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