IVF mix-up: White couple can keep black twins says judge

The white couple who gave birth to black twins after a mix-up at an IVF clinic are to be allowed to keep the children despite continuing uncertainty over their legal status, a judge ruled yesterday.

The other couple involved in the case remain childless despite having had fertility treatment.

Dame Elizabeth Butler Sloss, Britain's most senior family judge, named the clinic where the error happened as the Assisted Conception Unit at Leeds General Infirmary but she retained the ban on identifying the children and the couple.

The Leeds unit is among the most successful in the country and had topped the league table with the highest live-birth rate. But there was a suggestion yesterday that it may have taken on too much work.

The Human Fertilisation and Embryology Authority imposed conditions on the Leeds clinic's licence, limiting the number of egg collections and embryo transfers. At a press briefing on the background to the case, Sue Avery, chairwoman-elect of the Association of Clinical Embryologists, said, without naming the Leeds clinic: "If the workload is taken beyond safe limits, that is the point where errors can occur."

Dame Elizabeth, making an interim statement on the case, which first came to light in July, said that no one was suggesting the twins should be uprooted from their "happy and loving" environment with the white couple, Mr and Mrs A, "at any stage". In the mix-up, sperm taken from Mr B, who was having fertility treatment with his wife at the Leeds clinic, was used to fertilise Mrs A's eggs, giving him a claim to be the legal parent of the twins, with Mrs A. The judge said the next stage in the proceedings, early next year, would be to establish the legal parentage of the twins. There were no concerns about the twins' welfare and there were no family proceedings before the court, suggesting that both sets of parents had accepted the twins should continue living with Mr and Mrs A.

The twins are believed to be aged over two. The error came to light only as the parents became aware that the skin tone of their children was different from their own.

If the judge decides that Mr B is a legal parent of the twins he could request contact with them. Mr B was also not a willing donor of his sperm, raising a question about what remedy he has for its unauthorised use. The judge said a similar mix-up might have occurred in the treatment of Mr and Mrs B.

Rosemary Carter, former chairwoman of the Family Solicitors Association, said: "We could have a situation where two sets of parents end up with parental responsibility. There will also be the issue of compensation. It is an absolute minefield."

In her judgment, Dame Elizabeth said the twins "have been loved by Mr and Mrs A and their wider family from the moment of their birth and nothing that has happened since then will change that". She commended the couple for the way they had responded to the discovery, proved by DNA testing, that Mr A was not the father, which had been a great shock. Mr and Mrs B were at first unaware of what had happened, but the judge said she had ruled in July that they should be told. They too were shocked but had reacted with dignity. Mr B agreed to DNA testing, which proved he was the biological father.

The Leeds Teaching Hospitals NHS Trust said it deeply regretted the incident. "No system can be immune to human error, but we believe we have done everything we can think of to prevent this sort of event. Since the beginning of this year, every stage of every treatment cycle is witnessed by a second professional."

The Human Fertilisation and Embryology Authority said yesterday it had tightened checks at all 72 clinics providing IVF in Britain. Every point at which gametes or embryos are transferred or moved must now be witnessed by two people, and new audit arrangements have been introduced.

Serious errors, such as equipment failure, occur in one in 1,000 cases, but mix-ups involving embryos were rarer, up to twice a year, the authority said. The black twins were the only known case that had resulted in a live birth. A similar error at St George's Hospital, Tooting, south London, in March, led to two women having the wrong embryos replaced, but those were washed out of their wombs when the mistake was discovered.

Suzi Leather, chairwoman of the authority, said: "Intuitively, as this is the only case we know about and involves babies of a different race [from their parents], it suggests this may not be the only time it has happened but we do not know. Any mistakes are unacceptable, whether they are the result of system failure or human error and we have to ensure these risks are minimised in the interests of patients."