Storm in a test-tube

The Sun newspaper broke the news on 8 July 2002 that a white couple (Mr and Mrs A) had black twins, following fertility treatment.

But would everyone get their knickers in a twist, if this were a ‘white couple has white babies’ or a ‘black couple has black babies’ story? Of course not. The mother may have been surprised at the birth, but doubtless this was outweighed by the arrival of two healthy babies, when the couple had previously thought they couldn’t have children.

All over the UK, couples from different ethnic backgrounds, married and unmarried, are having families together, with nobody batting an eyelid. Yet the state got all hot and bothered because a couple had ‘twin children of different ethnic origin…following fertility treatment’ (1).

Mr and Mrs A and their babies have all been taken to court. In two separate High Court actions, an anonymous NHS Trust and the Human Fertilisation and Embryology Authority (HFEA) are both suing this unfortunate family in the Family Division. The NHS Trust has also made a local authority a defendant to the lawsuit (presumably, the local authority where the parents live). The Official Solicitor, another state official, is acting for the twins, in both sets of proceedings. So the parents are not even allowed to represent their children. Welcome to the UK, baby A and baby A.

The way the NHS Trust’s legal action has been framed casts doubt on whether this family is a ‘legitimate’ family unit. It seems these parents cannot be trusted to represent their babies’ best interests in court. It would be interesting to know what say they had in the matter, before the litigation commenced.

The Official Solicitor may now warn the parents that, if they don’t cooperate with him or with social services, the children could be made wards of court. Presumably social services are assessing the A family. Views may have already been expressed on whether black children should be allowed to live with white parents. Stringent gagging orders prevent anyone finding out what is happening – the A family cannot give the press their side of the story, or fundraise to meet the costs of defending themselves against this legal onslaught.

It seems that if, following fertility treatment, you do not produce kids resembling you, you may be hauled before the courts to explain yourself. Apparently the NHS Trust is seeking a declaration of the twins’ parentage. It is also asking the court to decide what future provision should be made for these twins, in their best interests. This is extraordinarily intrusive. As for the HFEA, apparently it wants to know if the clinic breached its licence (2). So why should it sue the A family?

These actions seem to reflect official (and moral) panic, rather than a genuine legal dispute. Normally, if you want to sue, you must have what lawyers call a ‘cause of action’. This means that someone must have done something wrong to you, or be threatening to do something wrong to you. But you don’t drag people to court just because you’d like to ask some questions. And since when has the NHS had the right to question children’s parentage, or to insinuate that parents are unfit?

We don’t know yet what treatment Mr and Mrs A had. They might have wanted to use their own sperm and eggs, or donor gametes. They could have maternity and paternity tests done, to see what genetic links they have with their babies. That would be a private matter for them to decide, in consultation with their medical advisers, and has nothing to do with the courts. The couple might prefer not to have such tests done, because they love and welcome these children exactly as they are.

There can be no room for legal argument about the A twins’ parentage. The Human Fertilisation and Embryology Act 1990 is clear. Section 27 provides that ‘The woman who is carrying or has carried a child a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child’ (3). The only exception is Section 30: where a married couple enter into a surrogacy arrangement with another woman, who agrees to carry a child for them. Section 30 doesn’t apply here because there is no suggestion that someone was acting as a surrogate mother for the A couple.

So Mrs A is the mother. Why drag her to court to have that confirmed, when everyone already knows the answer?

What about Mr A? If a married couple has infertility treatment at a clinic, and the husband’s sperm is not used, he is deemed to be the father of any child born using another’s sperm, unless he did not consent to the treatment (4). Presumably Mr A did consent to the treatment with his wife, and so he is the father. In any event, there is a legal presumption that children born to a married couple are the legitimate children of the marriage (5).

If the couple were unmarried and sought treatment together, the male partner is deemed to be the father of any children born as a result, even if donor sperm is used (6). Under Section 28, where a man is treated as the father under these previous subsections, no other man is to be treated as the father (7). Men who donate sperm to help infertile couples have no rights at all (8). So what is there to argue about?

It is assumed that the twins were black because a black couple (Mr and Mrs B) also had fertility treatment, and their eggs or embryos somehow got mixed up. Now a Mr and Mrs B have made themselves known to the authorities – and will also be joined in the litigation. We don’t know if Mr and Mrs B had any children themselves, as a result of their fertility treatment. If Mr B’s sperm were really used to make the A couple’s babies, an interesting question arises: what has happened to Mr A’s sperm? Presumably that might have been accidentally used to make a child for Mr and Mrs C – and so on.

This dismal cock-up reflects badly on the NHS, but hardly justifies the NHS suing its former patients. However, the NHS Trust plans to ask even more questions: what right Mr B had over his sperm, and whether he should have been told of the mix-up (9). The stage is being set for a legal moot, over ownership of body fluids. It is odd that when the NHS Trust is in such a hole, it doesn’t stop digging. Why not sit tight, and see whether the Bs sue?

In this mad legal tea party, what options has Mr B got? In theory, he could start an action himself, to upset the common law presumption that the A twins are legitimate. Morally, such an action would be questionable. His conscience may persuade him otherwise. Anyway, it would be his decision (not that of the NHS). Could Mr B invoke Article 8 of the European Convention of Human Rights? This covers the right to respect for one’s private and family life. Well, he hasn’t got family life with the twins, whom he has not met yet.

It is true that, in Mikulic v Croatia, the European Court of Human Rights recently held that Article 8 protects a child’s right to know who their father is (10). In that case, a child was born out of wedlock. The father refused to acknowledge paternity, so his ex-partner pursued him through the courts. He refused to have a paternity test. All sorts of delays occurred. The real problem was the inadequacy of the Croatian court system.

But under Section 28 of the Human Fertilisation and Embryology Act 1990, Mr A is treated as the father (11). This is not a case of twins not having a father: they do. He’s the one married to their mum, whom they call ‘dad’! Mr B is really no more than a sperm donor. In G v Netherlands (12), the European Commission concluded that a known sperm donor could not rely on Article 8, despite making regular visits to the child he had fathered. So why should Mr B be treated any differently?

If these issues were to be explored, it would be for the A couple and the B couple alone to fight them out. It is not for the authorities to meddle. This type of litigation would strike many lawyers as an abuse of process; but in the looking-glass world of the Family Division, even the daftest of claims tend to be taken seriously.

One thing is certain: this unseemly scramble in the courts is the last thing that either these couples, or the twins, need.

Barbara Hewson is a barrister at Hardwicke Civil

(1) Order of Lady Justice Butler Sloss, 8 July 2002 in an action between X Trust (Claimant) and (1) Mr A (2) Mrs A (3) YA (4) ZA (5) T Authority (Defendants), Case No. FD02P00895; and in proposed proceedings between The Human Fertilisation and Embryology Authority (Proposed Claimant) and (1) Mr A, (2) Mrs A, (3) YA (4) ZA (5) X National Health Service (Defendants). The children are represented by their Litigation Friend, the Official Solicitor

(2) Couple in IVF mix-up wait for court date, Clare Dyer, Guardian, 10 July 2002

(3) Section 27(1)

(4) Section 28(2)

(5) Section 28(5)

(6) Section 28(3)

(7) Section 28(4)

(8) Section 28(6)

(9) Donor joins sperm mix-up case, Guardian, July 19 2002

(10) (2002) 11 BHRC 689

(11) Section 28(2), (4)

(12) (1993) 16 EHRR CD 38