Can you have the ‘wrong’ skin colour? (and other interesting questions)

18 October 2010 by Alasdair Henderson

A (a minor) and B (a minor) v. A Health and Social Services Trust, [2010] NIQB 108 – Read judgment

In a fascinating case involving IVF treatment, the High Court in Northern Ireland has held that no duty of care is owed to human cells and that having a skin colour different to that intended cannot be considered legally recognisable loss and damage.

Professor Robert Edwards, the British scientist who pioneered in vitro fertilisation, was recently awarded the Nobel Prize for Medicine. But while Professor Edwards’ achievements have changed the lives of millions of infertile couples around the world, they have also given rise to a whole host of thorny ethical and legal questions. A recent decision by Mr Justice Gillen in an extremely unusual case has attempted to wrestle with some of these issues, and in particular with the rights (if any) of human cells.

The claimants, A and B, were children born as a result of IVF treatment provided by the defendant. The children’s parents were white, and so understandably (and following normal practice) the mother’s eggs were supposed to be inseminated with donated sperm from a white donor. Unfortunately, the defendant mistakenly used donated sperm labelled “Caucasian (Cape coloured)”. A and B therefore had skin colours that were markedly different from their parents, and different from each other.

The claimants brought claims for damages, saying that they had been called names by other children, had malicious comments made about them and their relationship to their parents, and had wondered whether they were adopted. As a result they said they had suffered emotional distress.

Duty of care

The first difficult question the court had to consider was whether or not the defendant owed the claimants a duty of care at the time of the mistake. As Gillen J explained, this was new territory for any court to explore:

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 deemed inappropriate donor sperm. Was there a duty owed to the cells that the eggs would not be so fertilised?

The judge went on to sidestep the scientific, philosophical and moral minefield that this question opens up by finding that it was for Parliament to “grasp the nettle” on this issue, not the courts, and that “absent the imprimatur of Parliament” the claimants did not have sufficient status at the relevant time to be owed a duty of care.

It is dangerous to venture where the learned judge feared to tread, but this decision must be correct. The common law position is that while an unborn child does not have legal personality, there is a duty to take care not to cause damage to it while still in its mother’s womb, and a child is deemed to be possessed at birth of all the rights of action which it would have had if it had possessed legal personality at the date of any accident befalling its mother (see Burton v. Islington HA, which was considered by Gillen J). However, it is another step entirely to say that a duty of care is owed to a single egg, when a child is only a twinkle in its father’s eye, or (as the case may be) a solitary cell at the bottom of a test-tube. If a duty of care were owed to human cells, this would have much wider ethical and legal implications than IVF clinics having to be a bit more careful.

Loss and damage

The second difficult question Gillen J tackled was whether, if a duty of care was owed to the claimants, they had suffered any actual damage. The claimants were both perfectly healthy children. The only ‘problem’ was their skin colour – it was not what their parents had intended or expected. The judge held that “whilst the current circumstances could not fail to engage both sympathy and concern for the parents” as a matter of legal policy (see McFarlane v. Tayside Health Board) healthy children were a blessing for which damages could not be claimed, and that:

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.

As a result, he held that the children had not suffered any legally recognisable loss or damage.

This, too, must be the correct conclusion. No doubt the claimants had suffered abuse, but as the judge put it “the presence of persons sufficiently misguided and cruel as to issue racist comments directed at these children is no basis for a conclusion that they are somehow damaged.” To find otherwise would be to say that being of a particular colour was a detriment in some circumstances, which would be morally repugnant.

Postscript – anonymity orders

The defendant had argued that publication of the judgment in any form could compromise the privacy rights of the children under Article 8 and would lead to unnecessary disturbance of confidence in IVF treatments.

Gillen J held that an anonymised report of the case could be published. In balancing the Article 8 rights of the children against the important free press rights under Article 10, he noted that the parents of the children were neutral on publication as long as the claimants were not identifiable, and that

“[T]he issue of IVF (a subject on which differing views are held by the public at large ) and the general context of what has happened in this instance are matters of general public interest on which I should give effect to the right of the press to freedom of expression.”

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