A couple (husband and wife) in Ireland was using IVF with third-party sperm. They were both white. The selected donor was, I gather, also supposed to be white. The donor actually used was “Caucasian (Cape Coloured).” That’s a label that refers to members of a mixed race community in the Western Cape, South Africa. It seems that a staff member didn’t understand the implications of the label. As a result the children born to the couple had darker skin than the either member of the couple. In addition, the skin tones of the (two?) children differed, each from the other. The parents sued the clinic and the news reported here is that a judge rejected their claim.
I’ve written about ART mistakes a few times in the past, but I think this one is slightly different. The couple intended to use sperm from sperm from a third-party and, it seems, from an unknown third-party. It actually does not sound like they had chosen a specific provider, but rather that they were prepared to accept sperm from a person who met some general characteristic that they specified. This seems somewhat different from where either the husband’s sperm is supposed to be used or where the couple has chose a specific person as the source for the sperm.
It’s easy to say that the clinic should have been more careful, trained their staff more fully in the meaning of the labels they employed. That said, how would you describe the damage in this case? Let’s assume, as seems to be the case, that the children are healthy and well. They are simply not quite the color that the parents wanted.
I cannot think of a way to assess damages in a case like this that would not have appalling implications. Is a dark-skinned child worth less than a white-skinned child?
There are allegations that the children’s lives are more difficult–that they are taunted and teased because of their color. That’s a very sorry commentary on society, but it’s also something that ought to make us think.
There’s a not-so-very-old case in the US called Palmore v. Sidoti. (It’s from 1984.) A woman–white–had custody of her child from an earlier marriage. She remarried and her new husband was black. Her ex-husband–who was also white–sought custody of the child, asserting that the child’s life would be difficult because she would now be living with a multi-racial family. The trial court accepted his argument and directed that custody be switched to the father. The mother appealed to the Supreme Court, which reversed the trial court’s ruling.
While the Court conceded that private biases a prejudice existed, it rejected the father’s argument.
The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.
Of course the Constitution has no bearing on this case. (It’s in Ireland.) But it seems to me that something of the same reasoning applies. Damages cannot be awarded because these children are not white.
At the same time, I am not without sympathy for the parents here. They did not undertake to raise non-white children and may be unprepared to face the challenges that multi-racial families face. Perhaps it would make sense to provide them with some form of counselling or other support for the task they now face.
So many people who become parents face challenges they did not imagine and did not wish to face. Parenthood does not come with guarantees, not even when it is high-tech parenthood. I don’t mean that we shouldn’t criticize a clinic that makes the mistakes here. But there will be mistakes, and even where there are not mistakes, there will be unexpected outcomes. That’s just part of life.