updated 3/23/2007 12:33:35 PM ET 2007-03-23T16:33:35

A couple can proceed with a lawsuit against a fertility clinic they filed after the wife gave birth to a daughter whose skin they thought was too dark to be their child, a judge has ruled.

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Thomas and Nancy Andrews, of Commack, N.Y., sued New York Medical Services for Reproductive Medicine, accusing the Manhattan clinic of medical malpractice and other offenses. They claim the Park Avenue clinic used another man’s sperm to inseminate Nancy Andrews’ eggs.

Three DNA tests — a home kit and two professional laboratory tests — confirmed that Thomas Andrews was not the baby’s biological father, state Supreme Court Judge Sheila Abdus-Salaam quoted the couple as saying.

The couple says that they have been forced to raise a child who is “not even the same race, nationality, color ... as they are,” the judge said in the ruling.

The lawsuit, which seeks unspecified damages, came to light Wednesday after the judge issued a decision that allows them to proceed with parts of the lawsuit while dismissing other parts.

The judge quoted the couple as saying that after their daughter, Jessica, was born Oct. 19, 2004, they knew something was wrong because of her physical appearance.

They say that “while we love Baby Jessica as our own, we are reminded of this terrible mistake each and every time we look at her; it is simply impossible to ignore,” the judge’s decision said.

The judge, in her ruling made public Wednesday, dismissed the claims against Dr. Martin Keltz, who had advised the procedure and had performed the embryo implantation.

She allowed the case to proceed against Dr. Reginald Puckett as owner of the clinic but threw out the case against him as an individual.

In trying to have the lawsuit against Puckett dismissed, his lawyer, Martin B. Adams, told the court that Puckett “did not examine, communicate with, care for or treat plaintiffs.”

The judge found Carlo Acosta, the non-physician embryologist who processed the egg and sperm for creation of an embryo, also could be held liable.

The couple’s lawyer, Howard J. Stern, did not immediately return a telephone call for comment.

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