Medical Law Review
Volume 19, Issue 4 (Autumn 2011)
pages 657-668
DOI: 10.1093/medlaw/fwr029
Sally Sheldon, Professor of Medical Law and Ethics
University of Kent
The complainants, A and B, were twins born as a result of IVF treatment involving donated sperm provided by the Defendant Trust to their mother. While the children’s parents were white, the twins had darker skin than either of them and different skin colour to each other, a difference that had become more marked as they had grown older. It transpired that while the Trust’s normal practice would be to request only sperm from ‘Caucasian’ or ‘white’ donors for a white couple, in this instance sperm from a ‘Caucasian (Cape Coloured)’ donor had mistakenly been used. The implication of this error was that while the sperm donor was white, there was no guarantee that his genetic children would also be so. By the time the action reached the courts, the twins were eleven years old.
The Trust admitted liability to the parents. However, it opposed the action brought on behalf of the twins, in which they alleged three broad kinds of harm. First, because of their colour, the twins had become ‘the subject of derogatory comment and hurtful name calling from other children, causing emotional upset’. Secondly, they had been the subject of adverse and hurtful comment about the colour of their skin and their physical dissimilarity from each other, on the one hand, and between themselves and their parents on the other. This had led them to question their parents about whether they were adopted. Thirdly, should either twin go on to have a child with a partner of mixed race, any child born to them was likely to have a different skin colour from either parent.
The court proceedings raised, by common agreement of the parties, a number of legal issues: first, the existence and nature of a duty of care owed to A …
Read or purchase the article here.
Tags: Medical Law Review, Sally Sheldon