Biological dad is ruled father of IVF mix-up twins

The judge announced her decision at London’s Law Courts that the black biological father of the twins, Mr B, and not the husband of the white mother, Mr A, was the “legal father”.

The babies, referred to only as Y and Z, were born following a procedural blunder at the Assisted Conception Unit at Leeds General Infirmary when the black man’s sperm was mistakenly used to fertilise the eggs of the white woman, Mrs A.

Dame Elizabeth said: “These two families have gone through an astonishingly traumatic experience.

“I can’t think that anybody could consider any experience could be more traumatic than this and they will have to come to terms with my judgment and its consequences unless or until the Court of Appeal say that I am wrong.”

Within domestic family legislation “there are remedies which can underpin and protect the position of Mr A with respect to the twins”.

Mr and Mrs A can apply under the Adoption act 1976 to adopt the twins, she said.

After the ruling, Andrea Dyer, solicitor for Mr and Mrs A, confirmed that the couple would be seeking to legally adopt the twins.

She said: “The couple feel blessed that they have two beautiful children and Mr A will continue to treat them as his own.

“They feel a great deal of sympathy for Mr and Mrs B.”

Mohammed Ayub, solicitor for Mr and Mrs B, praised Mr and Mrs A for their “sensitivity and understanding”.

He said his clients wanted time to reflect on the judgment before deciding what do do.

In her 22-page judgment Dame Elizabeth said of the twins: “Although they lose the immediate certainty of the irrebuttable presumption that Mr A is their legal father, they will remain within a loving, stable and secure home.

“They also retain the great advantage of preserving the reality of their paternal identity.”

After the ruling, Laurence Oates, the Official Solicitor acting on behalf of the children, said: “This judgment is a step in the direction of resolving, as the President has described, the real human dilemmas behind the mistake that has occurred in this case.

“So this judgment establishes the legal parameters and effectively makes it clear that Mr A is not entitled to be treated as the legal father by virtue of the Human Fertilisation and Embryology Act.

“The act can’t be taken to govern the unique situation which has arisen in this case.”

He added: “Obviously, Mr and Mrs A have had a disappointment because they were seeking a declaration that the act could apply in their case.

“The family of these twins is Mr and Mrs A. The twins will stay living with them. To the world at large Mr A has been treated as the father.”

Dame Elizabeth, referring to the couples, told the court: “Their cases have been headlined across the press perfectly legitimately because this is a situation which the public is entitled to know about but the actual victims – as they all are of this situation which is irreparable – they are entitled to some protection.

“So it’s particularly important that no-one seeks them out.

“My orders say that and everyone knows the effect of them, but there are some cases that are so sensitive that I am just saying to the press and public generally to bear this in mind.

“Just have a great deal of sympathy for these families and the children and leave them alone.”

She said the twins “are going to grow up some time or other knowing about what has happened and the one thing they do not want and are entitled to be protected from is intrusion.”

Giving the background to the case, Dame Elizabeth said: “By a ‘mistake’ (which I shall call it despite its inadequacy as a description of what occurred) Mr B’s sperm were injected into the eggs of Mrs A.”

She said: “Behind the legal arguments which occupied the court for three days lies a tragic human story of two families trying to come to terms with the consequences of the mistake.”

The judge said she hoped the mistake in this case was “exceptional”.

Legal sources say it is likely the couple will begin proceedings for compensation.