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Latest Surrogacy News
Black donor is babies' legal father,
judge rules
By Joshua Rozenberg, Legal Editor
February 27, 2003
Telegraph
A black man whose sperm was
mistakenly used to fertilise the eggs of a white woman
was declared the legal father of mixed-race twins
yesterday, even though the woman and her husband have
been given responsibility for bringing them up.
Dame
Elizabeth Butler-Sloss, the senior family judge,
rejected a claim by the mother's husband, known as Mr A,
that he should be treated as the children's legal
father.
But the
judge has made a residence order in favour of him and
his wife, Mrs A, giving the white couple parental
responsibility. Their solicitor, Andrea Dyer, said later
that they would be seeking to adopt the twins.
She said:
"The couple feel blessed that they have two beautiful
children and Mr A will continue to treat them as his
own."
Mr and
Mrs A felt "a great deal of sympathy" for the twins'
biological father, Mr B, and his wife, she added. The
court was told last year that Mr and Mrs B remain
childless after their own fertility treatment failed.
Mohammed
Ayub, solicitor for Mr and Mrs B, praised Mr and Mrs A
for their "sensitivity and understanding". He said his
clients wanted time to reflect on the judgment before
deciding what do do.
Explaining why she had ordered anonymity for both
families, Dame Elizabeth said they had "gone through an
astonishingly traumatic experience".
In the
future, the twins would learn what had happened, she
said. "The one thing they do not want, and are entitled
to be protected from, is intrusion.
"Their
cases have been headlined across the press perfectly
legitimately because this is a situation which the
public is entitled to know about. But the actual victims
- as they all are of this situation, which is
irreparable - are entitled to some protection."
She told
reporters in court: "Just have a great deal of sympathy
for these families and the children and leave them
alone."
The
Assisted Conception Unit at Leeds General Hospital,
which was responsible for the blunder, has already
apologised. Yesterday, the Leeds Teaching Hospitals NHS
Trust agreed to pay both couples' legal costs.
The
sequence of events only came to light when Mr and Mrs A
noticed their children were dark-skinned. Mr B, who had
attended the unit with his wife on the same day as Mr
and Mrs A, did not know about the mix-up until the court
ordered him to be told.
Dame
Elizabeth said: "Of all the parties who have undoubtedly
suffered from this mistake, the twins - who at present
know nothing of it - have had their human rights most
obviously and seriously infringed."
However,
such interference with their rights could be justified.
Although Mr A was no longer to be regarded as their
legal father, the twins would remain within a loving,
stable and secure home. "They also retain the great
advantage of preserving the reality of their paternal
identity."
Under the
Human Fertilisation and Embryology Act 1990, a husband
is entitled to be treated as the father of a child born
to his wife by artificial insemination unless he did not
consent to the treatment. Mr A had consented to his
wife's fertility treatment using his own sperm, but not
that of Mr B. For that reason, said the judge, there had
been no consent to what had happened and the 1990 Act
did not apply.
"I am
certain that the truth in this case is more important to
the rights of the twins and their welfare than a
fictional certainty," Dame Elizabeth said. "To refuse to
recognise Mr B as their biological father is to distort
the truth about which some day the twins will have to
learn through knowledge of their paternal identity."
That
would not "impede the cementing of the permanent
relationship of each of them with Mr A who will act as
their father throughout their childhood".
Behind
three days of legal arguments lay a "tragic human story"
of two families trying to come to terms with the
consequences of what the judge called a "mistake" -
despite its "inadequacy as a description of what
occurred".
But, she
added, "everyone concerned with the problems which have
arisen in this case agrees that the twins should remain
with the family into which they were born".
Despite
being their father, Mr B does not have parental
responsibility for the twins in the absence of a court
order because he is not married to their mother. Any
disputes that may arise between the two couples over the
twins' upbringing will now be decided in private.
Dame
Elizabeth refused Mr and Mrs A permission to appeal
although they can approach the Court of Appeal direct.
Their counsel said that, at this stage, they had not yet
decided whether to challenge the judge's ruling.
It is
thought likely that they will seek compensation for the
hospital's negligence.
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