Biological father 'wins' in IVF mix-up case

A black man whose sperm was mistakenly used to fertilise the embryo of a white woman has been named as the legal father of the IVF-born twins.

The ruling in the High Court yesterday means that the man, known as Mr B, has the right to help to bring up the children while the white couple must now bring adoption proceedings to enforce their own parental status.

The babies were born after a mix-up at the Assisted Conception Unit at Leeds General Infirmary, where both couples were being given fertility treatment.

Yesterday, Dame Elizabeth Butler-Sloss, president of the High Court family division, said that under the current law Mr B was the legal father but that the custody of the twins must remain with the white couple, Mr and Mrs A.

Dame Elizabeth, who called it a "difficult" case, said: "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, with Mr and Mrs A." She said the twins had been born "children of mixed race by a mistake which cannot be rectified".

She said they had inherited two cultures, adding: "Their biological mother and their biological father are not married and cannot marry. They may not be able during their childhood to form any relationship with their biological father."

The white couple said they were disappointed by the ruling. Their lawyers added: "Mr and Mrs A now intend to apply for an adoption order in respect of the twins in order that Mr A will regain his legal standing." They also expressed sympathy for Mr and Mrs B.

Dame Elizabeth refused Mr and Mrs A permission to appeal against her ruling but the couple can still approach the Court of Appeal directly. The black couple asked for time to consider the ruling, which allows Mr B to ask for legal access to the twins.

Both couples can now consider compensation claims against the clinic. Lawyers estimate these could run to hundreds of thousands of pounds.

Dame Elizabeth reminded the media that there were injunctions preventing the naming of any of the individuals in the case. "These two families have gone through an astonishingly traumatic experience," she said. "Just have a great deal of sympathy for these families and the children and leave them alone."

The Human Fertilisation and Embryology Authority (HFEA), which regulates IVF treatment in Britain, described the decision as a reasonable one. The Association of Clinical Embryologists said it was working to try to ensure that "there will never again be another case in this country where the wrong sperm is used in an IVF procedure".

Last year the HFEA tightened procedures at all infertility clinics after the blunder.

'Accident of paternity' creates parental rights

By Robert Verkaik

Infertile couples who are seeking IVF treatment will be more concerned than reassured by yesterday's judgment.

This case has shaken confidence in fertility clinics and proved that the worst IVF mix-ups can lead to traumatic and expensive paternity battles.

Family law experts said that Dame Elizabeth Butler-Sloss's historic ruling raised as many questions as it answered. There is concern that an "accident of paternity" can create or impose parental rights that have not been requested or desired.

The family courts will now settle the terms of the black father's role in helping raise the twins. Three similar cases in America led to three different decisions.

Dame Elizabeth was asked to decide who had legal parentage. If Mr A could show that the facts came under the strict terms of the Human Fertilisation and Embryology Act 1990, he was the father. If not, legal parentage would be awarded to Mr B.

Dame Elizabeth followed the letter of the law. She said: "In the event that it becomes necessary to make any decisions to ensure the long-term welfare of the twins, the legal status of their parentage must be established." Naming Mr B as the legal father she added: "Because he was not married to the mother, however, he would not have parental responsibility for the twins unless it was specifically conferred on him."

Laurence Oates, the Official Solicitor, who acts on behalf of the children, said the judgment was "a step in the direction of resolving the real human dilemmas behind the mistake that has occurred''.