'Swapped babies must stay' Grounds to sue for two mothers

Two children who were swapped at birth should not be returned to their biological parents as this was not in their best interests.

This is the recommendation in a report by the University of Pretoria's Centre for Child Law director Ann Skelton, who said the two children - a boy and a girl aged four - should remain with the parents who had raised them since birth.

The report, handed to court yesterday, contains details of how the two families are dealing with the shocking news that their children were swapped at birth.

Skelton was appointed by the Pretoria High Court in May to investigate the best outcome to the dilemma.

If the court accepts Skelton’s recommendations, this will see the parents cutting legal ties with their biological children and being treated as adoptive parents of the children they have been raising. They will have contact with their biological children.

The nightmare began last year when two East Rand mothers learnt their babies were swopped in 2010 at the Tambo Memorial Hospital in Boksburg.

The mistake emerged when one of the mothers tried to claim maintenance from the man she believed was her son’s father. Paternity tests revealed that not only was he not the boy’s father, but she was not his mother.

"She was almost hit by two cars on her way back home," Skelton says in the report.

The mother initially wanted her biological child back, but later acknowledged this may not be best.

"She said that it would be sad to take [the girl] away from a father who loved her. She also said that she was worried about [the boy she has raised] if the other family was unable to love him."

The other mother was hospitalised due to shock on hearing that her daughter was not hers.

She and her “devastated” former boyfriend, after whose mother the girl was named, doubted the results of the DNA tests.

"[The father] indicated that he had always believed – and believes to this day – that [the girl] is his child. He has a very close relationship with her … and he remarked that if she came into the room … she would run to him, excited to see her dad," Skelton wrote.

"He said that the shock of the news … had left him devastated. He compared it to the loss of all his limbs.

"They see her as their own child, are firmly bonded with her, and [the father] also referred to traditional ceremonies and family acceptance as reasons why ‘giving away’ their child is unthinkable to him."

A team of psychologists, psychiatrists and nurses from the Charlotte Maxeke Johannesburg Academic Hospital, who counselled the families, told Skelton that the children’s bonds with the mothers who were raising them was "very strong".

Next, the parties need to agree on a court date for Skelton’s report to be considered. She stressed that the parents should be given a chance to respond to her recommendations and that an agreement on the final court order should be mediated.

Skelton also said she believes the families have a damages claim and suggested that the Gauteng MEC for health should "concede the merits of the claim".

"The parents have suffered enormously and continue to be under considerable stress. The children are not yet aware of the problem, but the latest assessments indicate they are picking up on their mothers’ anxieties.

"Although financial assistance will not solve all the problems, it will ease their current difficulties."

Skelton said the swop was probably the result of the midwife dealing with both births muddling the files or the babies’ name tags on a “very busy” day.

According to the report, this is the first known case where children of different genders were swopped.

On Tuesday both mothers’ lawyers said it was “premature” to comment on the report. One confirmed having sent a notice to the MEC indicating the intention to sue for damages.

Additional reporting by Leonie Wagner