IVF: No Liability in Ireland for Using Sperm With “Black” Genes

IVF has changed our attitudes and expectations about bearing children, and not necessarily for the better. Instead of unconditionally loving the child who we receive, some instead demand the right to obtain the child they want.  And that can lead to litigation when the parents are disappointed.

In Ireland, children were born from IVF with darker skin than the parents had planned, resulting, according to the claim, in teasing and taunting.  The parents brought suit against the government IVF trust in the name of their children on the basis that they were wronged by being brought into the world with darker skin.

First, the judge rejected the idea that a duty of care is owed to children before they come into being.  From the summary of the decision.

Mr Justice Gillen said the court was being asked to develop the law to deal with an instance where harvested eggs were fertilised with mislabelled sperm. He acknowledged that the case raised difficult legal issues and stated: “It seems to me that it is for Parliament to grasp the nettle of whether there ought to be a duty of care owed in the circumstances … in this case.”... The judge concluded that it was not appropriate for him to find that the children had sufficient status to be owed a duty of care.

The judge is right, I think.  What legal duty can be owed to a being not yet in existence?  Imagine the can of worms opened if one were one to be found.

Then, the judge—again rightly—said that it is wrong to conclude a child is hurt by having dark skin:

In considering whether the children had suffered loss or damage Mr Justice Gillen commented: “…these are healthy and normal children. 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 ….. It would be contrary to the principles which underlie our multi-cultural society to suggest that the genes they carry somehow render them “a victim” at the hands of the defendant (the Trust).”

Bravo to the judge for making a strong affirmation of universal human equality.

But I worry (Hey, it’s what I do!): Would the same attitude apply if the child had been born with a disability that could have been detected with sperm testing?  The implication I see in the court’s language about “healthy normal children” is that perhaps it would not.  I am not making any accusations, of course.  But if I am right, that attitude should be considered just as discriminatory as claiming a wrongful life based on race.

Whether a child is brought into being via sexual intercourse or IVF, he or she should be fully welcomed and embraced regardless of the child’s personal characteristics.