• Contact Us

  • Contact Us

  • In a Northern Ireland case – A AND B BY C (THEIR MOTHER AND NEXT FRIEND) V A HEALTH AND SOCIAL SERVICES TRUST – heard by the Court of Appeal on the 24th June 2011 the appellants, who were twins successfully born to their mother following successful ICF treatment claimed that there had been a mistake made by the Trust which resulted in their skin colour being different from their parents. They claimed that there existed a legitimate expectation of the parents to produce children with the same ethnic characteristics as their own. The applicants claimed they had been subject to abusive and derogatory comments, causing them emotional upset and affecting their quality of life.

    An issue arose as to whether the trial judge was wrong in concluding that their claim against the Trust be dismissed and the Court`s direction was sought as to whether there existed a duty of care to the class of persons of whom the plaintiffs were one, whether breach of duty of care occurred, whether there was a causal connection between the defendant’s conduct and resultant damage and whether the damage was sufficiently foreseeable.

    Girvan LJ noted that the twins were “healthy and perfectly normal children born into what appears to be a normal and happy family life. Of what then do they complain? As a result of an error made by the treating Trust the sperm used in the process came from a donor from a different ethnic background from that of the parents. Each parent is of white Caucasian background and they wanted and expected the children produced by the IVF process to have the same ethnic characteristics as their own. This was an entirely legitimate expectation on their part. However, because of a mistake made by the Trust the sperm used in the process came from a donor of a Caucasian (Cape coloured) background. The Cape coloured community in South Africa is derived from races of different skin colouring including whites, black and Malaysian. The appellants have inherited skin colour characteristics of a much darker hue than the skin colouring of their mother and non-biological father.”

    It was held that the plaintiffs had suffered no compensatable wrong and the appeal was dismissed

    Girvan LJ concluded : “An error which results in the birth of a child suffering from real genetic defects raises quite different questions from those raised in the present case. Such a case would raise issues to which the 1976 Act is directed. Since in the present instance the appellants suffer from no disability and no damage in law it is unnecessary to consider further the question of whether in the circumstances a theoretical duty of care arose as between the Trust and the children who are born as a result of the IVF process carried out in this case.”