IVF children have a right to know their parents

There has to be an inalienable point at which a father is a father, and this should be the biological father

The Human Fertilisation and Embryology Authority may claim that the case is "unique". But in fact the scenario that has unfolded in the months since it was discovered that an IVF clinic used the wrong sperm to fertilise a woman's eggs is a variation on a recurring theme. While it is correct to say that no other case has come to light that features the extraordinary human error by which one man's sperm was substituted in the laboratory for another's, it is far from true to say that the sort of ethical dilemmas the case has thrown up are entirely unfamiliar.

This week, Dame Elizabeth Butler-Sloss, the president of the Family Division of the High Court, ruled that the biological father of the twins at the centre of this controversy is also the legal father. In doing so, she overturned the law that says the father of a child conceived by IVF is the man who signs the forms necessary for the procedure to take place. In the words of Graeme Laurie, an expert in medical law and ethics at Edinburgh University: "The truth was preferred to the legal fiction."

This is not the first time that the legal position in this regard has been overturned. In fact, it's not even the first time this month. In a case last week, the man who had signed the forms was also told that the legality of his position was precarious enough to be meaningless. He has been told that he cannot be recognised as the father of the child that he and his partner had endured seven years of fertility treatment to conceive. The three-year-old at the centre of this case is presently, to all intents and purposes, fatherless.

These cases are different, and have come to court for different reasons. But both share the hallmarks of the same problem. However much the courts are called upon to legislate for happy families, they cannot do this. For many, these continuing tangles of parenthood and love come about because of "unnatural science", and the "folly of playing God". But actually, in every single case, the problem isn't science, it's people.

In the first case, in which one man's sperm was mixed up with another's, the person at fault is the person who made the mistake in the laboratory. Otherwise, all of the parents in this nightmare situation are behaving impeccably. The father who wishes to be acknowledged as the biological parent of the twins, is right to want this. He understands how important it is for a child to know her biological antecedents, and should be admired for his tenacity in attempting to ensure that these children do so. His wife, the only one of the four to be without progeny, should also be admired for supporting him.

Yet it would have been far more difficult for Dame Elizabeth to have given the ruling she did if this couple did not also respect other important factors in a child's upbringing. In wishing for acknowledgement as the legal father, this man continues to recognise that the children are better off living with their mother and the man whom the courts describe as the "social and psychological father". This combination of priorities ensures that the best interests of the children are catered for on both counts.

But in the second case, in which three men could in some circumstances be considered to have a claim to be called the father, the child has been completely let down. Her mother has spent years undergoing treatment with her long-term partner, who had been rendered infertile after treatment for testicular cancer. They had selected donor sperm together, matching the donor as closely as possible to the physical characteristics of the putative father-to-be. When the couple broke up, the women did not inform the clinic treating her that she was no longer with the man who had signed the forms, and who was therefore the legal father of the child she was shortly to conceive.

She is with another partner now, and no longer wishes her former partner to have a part in her child's life, even though she is the one who has practiced deception in order to conceive a child. The legal right her former partner has is practically meaningless, and the law had no option but to concede this ugly fact. What can the law really do in this case, when it cannot – even though it tries again and again among the 50,000 cases of disputed contact now coming to court each year – force an unwilling mother to co-operate in maintaining contact with a biological father?

The children in the first case are clearly far more blessed than the child in the second case, and the reason for this is because the sperm donor – even though he was an unwitting sperm donor – wishes to claim that biological parents should have some responsibility for their children. Even when she is old enough to seek out her donor father, the child of the second case may not be able to do so.

For a short while last month, it looked as though the Department of Health was finally going to acknowledge that the right of a child to know the identity of its biological parent was more important than the right of a sperm donor to maintain his anonymity. At the last moment, though, the Department of Health back-tracked on this, worried that asking donors to accept that at some time their children may seek to find them would lead to a huge drop in people willing to donate sperm or eggs.

Now we are a short way into a period of further consultation, and the decision will not be made until the new research is completed. Progar, the organisation campaigning for the right of children of anonymous donors to seek out their biological parents, asks that this research should take into account that the new arrangements would have to involve looking for another kind of donor – one motivated by a more committed altruism than the kind that sperm banks presently rely on. In other countries, where donor anonymity is illegal, this approach works well and creates no shortage of donations.

These two cases – one in which the law recognises the primary importance of biological parenthood, and another which admits that the sort of fatherhood conferred by donor insemination is highly mutable, combine to add further persuasiveness to the voices arguing that this change in the law is necessary and urgent.

It is clear that conception in the laboratory, relying on donations, will continue. Any attempt to bar such practices, and perversely attempt to deny the knowledge and skill our scientists have won, would simply send such procedures underground or abroad.

But it is clear as well that when men who have taken part in IVF treatment have so little legal right to be considered as fathers, then there has to be some clear inalienable point at which a father is a father, for the sake of the children who find themselves caught up in the machinations or mistakes of adults, and also for the sake of all children who want to know where they come from but, as the law presently stands, cannot. That inalienable point, for all kinds of physical and psychological reasons, should be the biological father.

There must be people in this country who can understand and accept this, yet still want to offer a child to an infertile woman or man. Progar is right in its suggestion that the trick is to appeal to such people in the process of recruiting donors. This is the underlying message of Dame Elizabeth's sound and humane judgment, and the Department of Health should be listening.

d.orr@independent.co.uk