An infertile couple who contend that a donor sperm switch gave them triplets who now can't be passed off as the father's were not legally harmed by the alleged mix-up.

A sharply divided Utah Supreme Court issued that ruling Friday in what surely ranks among its most unusual cases.According to the court record, the couple sought treatment for infertility at the University of Utah Medical Center Fertility Clinic. After artificial insemination using the father's sperm yielded no results, Dr. Ronald Urry suggested in vitro fertilization using a "mixed sperm" procedure.

The technique increased the chances the mother would bear her husband's biological child while also allowing them to "believe and represent" the issuing child as the father's because they could select a donor matching the father's blood type and physical characteristics.

In other words, even if the donor sperm fertilized the ova, the child would still resemble the father, and the couple could go through life believing they were the biological parents.

The couple chose anonymous donor #183, a man described as having dark curly hair and brown eyes, like the father. The procedure was a success, and the mother gave birth to two girls and a boy.

But one of the triplets was born with red hair. And then a blood test conducted in connection with an illness indicated that two of the three children could not possibly have been the father's or #183's.

Suspecting a mix-up, the couple authorized a DNA test, which revealed that the father of the triplets was actually donor #83, a man with straight auburn hair and green eyes whom the couple had expressly rejected.

They filed a medical malpractice suit alleging they had "suffered severe anxiety, depression, grief and other mental and emotional suffering and distress which has adversely affected their relationship with the children and with each other."

However, 3rd District Judge Frank G. Noel concluded their alleged symptoms were "transitory, temporary and not the kind of physical manifestations of a mental illness that provide the basis for a claim of negligent infliction of emotional distress."

The couple appealed, arguing that a diagnosed mental illness in and of itself is sufficient to support a cause of action under the law. A 3-2 majority of the Supreme Court disagreed and affirmed Noel's judg-ment in favor of the medical center.

(The couple was identified in Friday's ruling, but the Deseret News has elected not to name them in the interests of the three children.)

Writing for the majority, Chief Justice Richard C. Howe said the court had been asked to believe that the couple's disappointment in their children had caused them severe emotional distress to the point of mental illness.

"As a result of their fertility treatment, the (couple) became the parents of three normal, healthy children whom the couple suggest do not look as much like (the father) as different children might have and whose blood type could not be descended from his," Howe wrote.

"This result thwarted the couple's intention to believe and represent that the triplets are (the father's) biological children."

However, Howe said, "destruction of a fiction cannot be grounds for either malpractice or negligent infliction of emotional distress."

He added that the couple's assertion that they didn't want children unless they were biologically theirs is "belied" by their knowing consent to use the donor sperm.

Also, Howe said it was impossible to know whether the children of #183 would have been superior in any way to the triplets "or, indeed, whether the same number of babies or none at all would have resulted" absent the mix-up.

"(The couple) do not allege that the triplets are unhealthy, deformed or deficient in any way. Nor do they claim any racial or ethnic mismatch between the triplets and their parents," Howe said.

"In fact, the couple has presented no evidence at all that the psychological characteristics of three normal, healthy children, which could not have been reliably predicted in any event, present circumstances with which a reasonable person, normally constituted, would be unable to adequately cope."

Justice Michael D. Zimmerman concurred in the opinion, and Justice Leonard H. Russon concurred in the result.

Justice Christine M. Durham dissented, saying some women will chose not to have children if they cannot honestly believe - "whether the belief is accurate or not" - that those children are biologically linked to their husbands.

Durham said her colleagues seemed to believe the couple was disappointed that their children are not "better looking." However, she said it was clear from their testimony that their primary concern was always the degree to which the children would resemble the husband.

"The majority opinion dismisses the (couple's) desire to believe and represent that any children born as a result of the treatment they received were (the father's) biological offspring as a `fiction,' " Durham wrote.

The mother would not have undergone the treatment without the assurance that she, her husband and any children they had would never need know whether a biological bond existed, Durham said.

"Had it not been for the university's negligence in mixing sperm from the wrong donor with (the father's), the `fiction' would never have been labeled a fiction; it would simply have been an `alternative reality' for the (family)," she added.

"In fact, in a sense, it was this alternative that the (couple) negotiated for in their contract with the university and that the university destroyed through its negligent act."

The notion that there can be no loss or harm associated with the case is "unrealistic in human terms," Durham said. With Justice I. Daniel Stewart concurring in her dissent, Durham said the case should have gone to a jury.