Embryos do not have right to damages over skin colour

Two children born through donor-assisted IVF did not have the standing to bring a case for damages for having been born with brown skin, due to their mother having been inseminated with sperm from the Cape coloured community in South Africa. Even if had they standing, Mr Justice Gillen said they had not suffered any damage, as they were healthy and normal children.

The parents of the children are white, and were anxious that any children born as a result of the IVF treatment would have the same skin colour. The normal practice was that only sperm from “Caucasian” or “white” donors would be requested.

However, the defendant health trust inseminated the mother’s eggs with sperm from a donor labelled “Caucasian (Cape Coloured)”, referring to a community in South Africa derived from people of black, white and Malay origin, who can have skin colour of varying shades. The trust acknowledged that a correct label on the sperm had been misunderstood by a staff member. Two children were born from this process, and through their mother they issued claims for damages for personal injuries, loss and damage by reason of the alleged negligence of the defendant.

In their statement of claim they said they were obviously of different skin colour to their parents, and from each other, and as a result they had been subject to abusive and derogatory remarks from other children, causing them emotional upset and leading them to ask their parents if they were adopted. If they went on to marry a person of mixed race, any child born to them could have different skin colour to either parent.

The judge in the case went on to consider whether the plaintiffs had suffered actual damage. They were healthy, normal children, he said. “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.”

He pointed out that the House of Lords had found that no damages may be recovered where a child is born healthy and without disability or impairment.

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