White woman is legally the mother of black babies

The white woman who gave birth to black twins after a blunder at a fertility clinic is definitely the legal mother of the children, medical lawyers said last night.

However, if it was established that the biological father was a black man also having IVF treatment at the centre with his black partner, there was no legal precedent in Britain as to who would be granted custody.

The black couple are believed to be contesting the paternity of the babies, who are now more than one year old.

Penney Lewis, of King's College London, said the Human Fertilisation and Embryology Act 1990 stated that whoever carried the children was legally accepted as the mother – no matter whose egg or sperm is used.

"But the issue of the father is more complicated. He clearly gave his consent to IVF treatment – but not this particular embryo.

"In this case, either it was not his sperm or not her egg. So he is open to a possible legal challenge as to whether he is or isn't the father.

"This is an extremely unusual case and there is no precedent so it would be up to the courts to decide."

More than 27,000 couples a year undergo IVF, or in-vitro fertilisation, in Britain. It is an advanced procedure where donor sperm are used to fertilise a female egg to produce an embryo that is then implanted in the woman.

The treatment is limited in its availability on the NHS and many couples spend thousands of pounds to go to private clinics because they want to start a family so badly.

All clinics that carry out the carry out the delicate procedures have to be licensed by the Human Fertilisation and Embryology Authority (HFEA), which insists on double-checks at each stage to make sure the wrong sperm, eggs or embryos are not used during the process.

But Lord Winston, a leading fertility specialist based at Hammersmith Hospital, London, said he was not certain that all clinics that offer the procedure complied with the exacting standards, that required two embryologists present at each step.

He said the HFEA was so underfunded by the Government it did not have a permanent inspection team, but relied on "ad hoc" visits to check clinic standards.

"The key is at the Government's door which has been grossly underfunding the HFEA. The consequence is it is unable to be more vigorous in its inspections of clinics."

Lord Winston said he did not want to "pontificate" on a case he knew nothing about but his first reaction was that "the white mother should keep the children".

A court hearing is scheduled for 10 October to decide the preliminary issues of the case, including who is the biological father of the children who have been referred to only as YA and ZA. Such are the sensitivities surrounding the parentage of the children, that the Official Solicitor placed a legal ban yesterday on identifying the parents, the children, details of the treatment, the clinic and the NHS trust involved.

The issue of whether any children born by donor sperm or eggs should be able to find out who their genetic parents are is currently the cause of much controversy, especially since the Government has launched a consultation exercise on the subject.

Yesterday, John Mills, the chairman of the British Fertility Society, and a gynaecologist at Ninewells Hospital in Dundee, said the two children in this case could need years of counselling.

He said: "My heart goes out to everyone involved, especially the two youngsters who will need all sorts of help, counselling, and very careful handling. The two sets of parents will also need help. Counselling, commiserations and apologies, all these things are in order."

Although fertility experts have stressed that mistakes in the procedure were extremely rare, the case raises the possibility of the clinic involved, or the NHS trust, being sued for damages by the couples at the centre of the scandal.

Mrs Lewis said the HFEA could close down the clinic involved by revoking its licence. The clinic could also be sued for negligence and battery.

She said: "They placed a different embryo in the woman to the one she was expecting.

"She would have a case for shock and violation of her bodily integrity, which is what battery comes down to.

"I have never seen a case like this before so it is impossible to guess any ball park figure for damages." The Department of Health and the HFEA declined to comment yesterday for legal reasons.