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Monday, 8 July, 2002, 18:00 GMT 19:00 UK
Q&A: Legal minefield of IVF 'mistake'

A white couple undergoing IVF treatment have had black twins after a blunder at a fertility clinic.

It has sparked an unprecedented legal debate over how it could happen and who the 'lawful' parents are. BBC News Online asked Penney Lewis, a lecturer in law at King's College London, about issues surrounding the case.

How would a court decide who is the legal mother of the twins?

Under the Human Fertilisation and Embryology Act 1990, the woman who gave birth to the twins is their legal mother.

What if the wrong egg was used?

The woman who gave birth to the twins will still be their legal mother regardless of whether she is their genetic mother.

If the sperm used was from her husband or partner, then he will be both the genetic and the legal father of the twins.

If the wrong sperm was used, who is the legal father of the twins?

Here the legal issues become more complicated.

If the woman who gave birth to the twins is married, then under the Human Fertilisation and Embryology Act her husband will be the legal father provided he consented to the IVF procedure.

Even if he did consent to the IVF, it could be argued by the other couple that he did not consent to IVF using the wrong embryos and thus his consent was not valid.

Then paternity could be determined genetically.

What if they are not married?

Ironically, it may be easier for the partner of the woman who gave birth to the twins to be their legal father if the couple is not married.

This is because he will be considered to be the legal father as long as he and his partner were receiving treatment services together under the HFEA 1990, which they were, even though arguably they did not receive the treatment services to which they had consented.

What if it turned out that a fertilised egg from the black couple was wrongly implanted in the white mother?

Even if there is no genetic link between the white couple and the twins, the legal issues do not change.

The white mother will still be the legal mother, and the issue of legal fatherhood will be determined as discussed above.

Has there ever been such a legal case in the UK?

No. There have been similar cases in the US and the Netherlands but not in the UK.

Does either couple have legal redress against the doctors or clinic?

The woman who gave birth to the twins may have an action in battery against the doctors and the clinic as she did not consent to the treatment she eventually received: the embryos placed in her were not the embryos she had consented to.

Both couples may have actions in negligence against both the clinic and the doctors if it is found that they fell below the standard of care to be reasonably expected of them.

Could the doctors be criminally liable ?

The doctors and the clinic have not committed a criminal offence under the Human Fertilisation and Embryology Act 1990 so it is unlikely that they could be criminally prosecuted.

What level of compensation or damages might either set of parents expect ?

The woman who gave birth to the twins might receive damages for battery compensating her for the nonconsensual invasion of her bodily integrity.

All four might receive damages for psychiatric injury based on shock.

Might the clinic or doctors face disciplinary action?

If a complaint of misconduct were filed against the doctors involved then the General Medical Council would investigate it.

There has also been a breach of the clinic's licence conditions.

The licence could be reviewed by the Human Fertilisation and Embryology Authority and possibly revoked.

See also:

08 Jul 02 | Health
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