In A (A Minor) and B (A Minor) By C Their Mother and Next Friend v. A Health And Social Services Trust, the High Court in Northern Ireland has found that children born as a result of IVF of different colour to their parents and of different colour to each other, were not owed a duty of care and had suffered no legally recognisable "loss or damage" .
The Court held that it was not appropriate to award compensation in respect of an expectation of a legitimate outcome that the children would have particular aspects of physicality. He noted that the defendant had long been willing to negotiate settlement.
Gillen J considered that it was for Parliament to decide whether a duty of care was owed in the circumstances and that he could not expand the common law duty of care to human cells.
Moreover he reasoned that as the children had not suffered any actual damage, having been born health and without disability, no damages were recoverable. "The children in the instant case are normal and healthy...the presence of persons sufficiently misguided and cruel as to issue racist comments directed to these children is no basis for a conclusion that they are somehow damaged."
Separately, readers of the PILA bulletin will remember that last year the Irish Supreme Court in Roche v. Roche found that frozen embryos did not enjoy the protection of the 'unborn' under Article 40.3.3 of the Constitution. Legislation on assisted human reproduction is awaited.