Court orders DNA test in IVF dispute

A couple from Ballito in KwaZulu-Natal have secured a court order authorising a DNA test on a nine-year-old boy who they believe is biologically theirs after their embryo was allegedly given to an Indian woman at a fertility clinic 10 years ago.

The woman who gave birth to the child initially opposed their application, arguing that the matter should first be dealt with by the office of the Family Advocate.

But after a legal expert and a clinical psychologist weighed in, Durban high court judge Nomfundo Sipunzi granted an order, taken by consent, directing that the birth mother take the boy to a local laboratory before the end of July, where a DNA swab will be taken.

The couple will pay for the test. Both parties will be entitled to receive the result directly from the laboratory.

The couple, who are black, allege that the boy was born to a mother of Indian descent after their frozen fertilised embryo was — unknowingly to them and illegally — implanted in her at Westville-based Care Clinic through IVF.

Their daughter was born in May 2017 after treatment at the clinic. They allege they were told that all their viable embryos had been used and that they were never asked to pay storage fees, as would have been the case if any remained.

The boy was born a month later.

The couple say they only became aware that an “Indian woman had given birth to a child with African features” after an employee at the clinic blew the whistle. They hired a private investigator who tracked down the child and his family.

This matter is unique, as far as I am aware. There are no reported cases dealing with DNA testing on a child in a situation where there has been an apparent embryo mix-up

—  Liz Law, advocate

The couple initially approached the court in March, but judge Peter Olsen ruled that an advocate should be appointed to represent the child and compile a report on his best interests.

That report, prepared by advocate Liz Law, was before Sipunzi this week.

Law said she had interviewed both families but had not interviewed the child.

“This matter is unique, as far as I am aware. There are no reported cases dealing with DNA testing on a child in a situation where there has been an apparent embryo mix-up,” she said in her report.

She said the couple believed the child had a right to know who his biological parents were.

They had also indicated that they might want to enforce their parental rights and responsibilities, but first needed legal certainty that he was their biological child.

They might also want to take legal action against the clinic.

Law said neither the Constitution nor the Children’s Act expressly referred to a child having the right to know his or her biological parents.

In considering whether an order should be granted and if the test confirmed a match, “one must consider the consequences which will follow”. A court should take this into account, given that litigation — often stressful and acrimonious — was likely to follow.

However, she said that in her interviews with the couple they had come across as “reasonable and conciliatory”.

“They indicated that, first and foremost, they wish to have contact with him, but they may ultimately wish to claim primary residence. They are prepared to engage a social worker or a psychologist to facilitate that process and engage in mediation [with the birth mother].”

Law cautioned that it was difficult to imagine a court granting an order removing a young boy from the care of his psychological mother, who had raised him since birth, in order to place him in the care of his biological parents.

She said the birth mother had told her that the child had not yet shown any curiosity about his “differentness”, other than to ask why his hair was different.

Law proposed the involvement of a clinic psychologist before or after any DNA testing.

In my opinion, the [birth mother’s] role as primary attachment figure must be protected. The adults should also be assessed for their readiness and capacity to participate in a child-centred process

—  Francois de Marigny, psychologist

Psychologist Francois de Marigny, relying on documents before the court and without interviewing any of the parties, said in a report submitted to court that DNA testing should be the first step.

A negative result would be the end of the matter.

Even a positive match result would not justify “immediate disclosure”, immediate contact or any change to the child’s life, but would confirm a factual position that would allow appointed professionals to guide a staged process, De Marigny said.

“In my opinion, the [birth mother’s] role as primary attachment figure must be protected. The adults should also be assessed for their readiness and capacity to participate in a child-centred process.”

The Sunday Times previously reported that, in her court papers, the biological mother accepted that the couple were, in fact, the biological parents.

It also emerged in court papers that she had sued the clinic, but the matter was settled out of court.

The owner of the clinic, fertility specialist Dr Anil Ramdeo, confirmed that the matter was “resolved on a confidential basis”. He claimed that the donor (the couple) had consented “in writing to the anonymous donation”.