Court of Appeal rejects claim for 'different skin colour' following IVF mix-up

The Court of Appeal in Northern Ireland has dismissed two children's claim for damages brought against an unnamed Health and Social Services Trust for negligence in their parents' IVF treatment.

The two children, who cannot be named for legal reasons, were born with darker skin to their parents after the trust mislabelled donor sperm prior to their parents undergoing IVF in 2003. The children's mother was wrongly inseminated using sperm labelled 'Caucasian (Cape coloured)' — 'Cape' referring to a community in South Africa comprising of races of different skin colouring.

The children claimed they had been subjected to abusive and derogatory treatment because of their skin colour being different to that of their parents, causing them mental distress. But the court disallowed their claim, saying it could not proceed because the children did not suffer from any form of disability or damage in law - the children had been born successfully, without mishap, and led a healthy existence.

'Having a different skin colour from the majority of the surrounding population and their parents cannot sensibly be regarded as damage or disability', said Lord Justice Girvan, adding that the children had been subjected to abuse because of the 'boorish and unacceptable behaviour of others'.

'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', he said.

Lord Justice Girvan said in a pluralistic, compassionate and tolerant society there should be no room for such behaviour which flows from the inability of some to tolerate differences in others.

The ruling backs an earlier ruling given by Mr Justice Gillen in the Northern Ireland High Court of Justice.