New York State Supreme Court Justice Sheila Abdus-Salaam has allowed Thomas and Nancy Andrews to pursue unspecified damages for parts of their claim that in 2004, the fertility clinic Medical Services for Reproductive Medicine negligently used an unknown donor's sperm to fertilise Mrs Andrews's eggs, denying Mr Andrews biological fatherhood for their baby daughter, Jessica.
Justice Abdus-Salaam permitted the claim against Reginald Pucker to be held accountable as owner of the clinic, but rejected the claim against him individually, accepting defence attorney Martin B. Adam's argument that he did not personally 'examine, communicate with, treat or care for the couple' and, thus, did not bear personal liability. She also dismissed a claim against Dr Martin Keltz who advised the couple and performed the embryo implantation, but upheld the liability of the embryologist, Carlo Acosta, who processed the egg and sperm resulting in the alleged mix-up.
The judge sympathised with the complaint that the mistake has particular impact because it resulted in a child who is 'not even the same race, nationality, colour...as they are'. She cited the parents' testimony in her decision that although they love their baby, they are reminded of 'this terrible mistake every time we look at her; it is simply impossible to ignore...We are conscious and distressed by this mistake every time we appear in public'. The judge, however, rejected the argument that the baby's birth had caused the couple mental distress. The court accepted that baby Jessica may experience unnecessary hardship because she will not know 'the identity of her actual father, and will consequently never be able to know her full medical history and condition'.
Mrs Andrews, who is Hispanic, and Mr Andrews, who is Caucasian, quickly suspected the blunder when their newborn appeared to have a much darker complexion and showed facial and hair 'characteristics more typical of African or African-American descent', according to the lawsuit. The Andrews performed a genetic home test, which two later professional tests confirmed, that showed Thomas Andrews is not Jessica's father but Nancy Andrews is her genetic mother.
The parents have several concerns beyond the impact of the racial discrepancy that extend to fears for the emotional well-being of their child, fears of any claim from the genetic father and fears that their genetic materials have also been misused for others and they are unwittingly the biological parents of another's child due to the clinic's negligence with their samples.
Similar incidents and legal actions have occurred worldwide. In July 2002, the UK Chief Medical Officer, Sir Liam Donaldson, responded to a spate of fertility mix-ups by commissioning Professor Brian Toft to investigate these events. The official report found a mixture of errors at fault, including human error, poor management and system failures. The highly critical report made 100 recommendations, endorsing a high level of regulatory scrutiny currently not in existence in the US.