In a heartbreaking battle over an eight-year-old boy, a black couple from Ballito have gone to court to compel an Indian woman to allow a DNA test on the child, claiming he was born from their embryo — which a fertility clinic mistakenly gave her nine years ago.
The Indian woman initially fought the application, arguing it was not in the best interests of the child, and tried to obtain a protection order against the Ballito couple, whom she accused of harassing and stalking her.
The couple hired a private detective last year after a receptionist at the Centre for Assisted Reproduction and Endocrinology (Care) Clinic in Westville “blew the whistle”, alerting them about the possible fate of one of their embryos after they visited the clinic in 2016 for an in vitro fertilisation (IVF) procedure.
The clinic told them they had used all three of their viable embryos and they gave birth to a daughter in May 2017 following the procedure, but the receptionist told them an Indian woman — who had been a patient at the clinic at about the same time — had given birth to a black boy one month after their own baby was born.
After the private detective tracked the birth mother, the Ballito couple went to the high court in Durban last year for an order requiring the Indian woman to have a DNA test done on the child.
This week judge Peter Olsen ruled that an advocate be appointed to represent the child and submit a report to the court on what would be in his best interests.
In her court papers in the case, the birth mother says that after she gave birth to a boy “with African features” she sued the clinic, which entered into a confidential settlement.
The fertility clinic is not a party in the application for a DNA test, but its owner, Dr Anil Ramdeo, confirmed to the Sunday Times that the clinic had resolved the dispute with the birth mother “on a confidential basis”. He claimed the Ballito couple had consented “in writing to the anonymous donation” of their embryo.
However, the couple said they had never consented to the donation of the embryo.
They said in court papers that in March 2018, nearly two years after they had their IVF procedure, the clinic had told them it had a “remaining egg” of theirs and asked for their consent to donate it. They reluctantly signed a consent form, not realising that the child in question was already nearly a year old.
Ramdeo declined to comment on these details.
The birth mother, in her court papers and correspondence from her attorney, acknowledged that the clinic had told her after her son’s birth that the wrong embryo had been used.
At first the birth mother opposed the demand for a DNA test, saying the office of the Family Advocate should decide what was in the best interests of the child.
It would be in the best interests of the child if his care and custody were to remain with me. I am the only mother he knows
— Indian birth mother
In court this week, she appeared to have a change of heart, with both parties agreeing to an order that would have authorised the testing. But the judge declined to grant it, instead asking for a report from a curator ad litem, an independent legal representative for the child.
The birth mother, in her affidavit, said: “It is my submission that it would be in the best interests of the child if his care and custody were to remain with me. I am the only mother he knows.”
The Ballito couple say in their papers that they do not, for now, intend to try to be declared the parents of the child, but they want to sue the clinic. They say they need “absolute legal certainty” about whether the child is biologically theirs.
Court papers show the couple struggled to conceive naturally and approached the clinic for assistance. The clinic told them three embryos had been fertilised, and all three would be implanted. They believed that there were no remaining eggs or embryos at the clinic.
When the clinic contacted them in 2018 about consent for donating a “remaining egg”, they were confused. “We had not paid for the freezing of eggs for the past two years,” they said in their affidavit.
The clinic told them “ex post facto” (after the fact) to sign a document indicating that only two embryos had been implanted in the biological mother and reflecting that “spare embryos were donated to another couple”.
“In hindsight we realised that the clinic appeared to be panicking and desperate for us to ‘update’ our initial consent form signed in 2016,” they said.
In March 2019 the clinic informed them that the couple who received their “embryo” would like to meet with them. “Again, we were confused because we thought we had only donated an egg, not an embryo,” they said.
They signed a document stating that they did not want the meeting.
Last year, when they returned to the clinic to pay their final account, the receptionist told them about the Indian woman who had had a black baby.
“Suspecting that the child was biologically ours and that our embryo had been used without our permission, we hired a private investigator,” the couple said.
Soon after, the wife went to the birth mother’s workplace to talk to her. The birth mother, she said, made a comment to the effect that “I knew this day would come,” but also said the child was in good hands and he would never bond with anyone but her.
In July last year the Ballito couple applied for the DNA test court order and there were further “interactions” between them and the birth mother.
The birth mother said these amounted to being “stalked”. She applied for a protection order against the Ballito couple, who she accused of “unlawfully” obtaining her private and confidential medical information from the clinic receptionist. However, she did not proceed with the application, which was opposed by the couple.
“They fabricated stories to secure meetings with me, harassed me at my workplace and said things ‘could get ugly’ if I did not co-operate,” she said.
She said when she was first confronted at her workplace, she informed the couple that her “matter had already been dealt with in good faith, through legal processes (with the clinic) at the onset about eight years ago”.
While she may be the only mother the child knows, what is quite clear is that the child must be aware that she cannot be his biological mother by way of their different races
— Biological parents
She said she told them that any claim should be pursued against the fertility clinic.
Describing her own experience with Care Clinic, the birth mother said in court papers that her newborn baby had “certain features” that made her suspect he was not biologically hers. She said the clinic had eventually told her that the embryo had been donated by “patient G”, who wanted to remain anonymous.
The couple said: “We are not, at this stage, seeking any parental responsibilities and rights. The child is of African origin. The birth mother is Indian. Quite clearly she would have known immediately, at birth, that it was not her biological child. She could have approached the court to formalise her status as the parent, which she did not do, and which is suspicious.
“While she may be the only mother the child knows, what is quite clear is that the child must be aware that she cannot be his biological mother by way of their different races.”
The director of the Centre for Child Law, Karabo Ozah, said the judge had been right to appoint a curator for the child. “This process usually enables the curator to engage with the parties and the children to understand the relationship. There may also be a need to involve psychologists. There is no one-size-fits-all.”
She said a DNA test would be necessary to ensure “the parties can know the truth”. It would also be important to determine how the mix-up took place at the clinic so a similar situation was avoided in future.
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