[ I wrote about this case last fall, before the decision in the case. This Ethics Quiz is a follow up. No fair cheating by going back and reading the older post until you have your answer]
Jennifer Cramblett, one half of a white same-sex couple that wanted a child, went to Midwest Sperm Bank and chose adeposit from donor No. 380. The sperm bank made that ol’ “8 looks like 3” mistake, so instead of the white donor the couple wanted, they were given sperm from donor No. 330, a black man. Cramblett filed suit against the sperm bank in 2014 for damages because she gave birth to a mixed-race daughter, and that was not what she paid for.
The sperm bank apologized but refunded only part of the cost to Cramblett and her partner Amanda Zinkon, and denied that damages were warranted. Cramblett’s suit alleged that the mistake caused her and her family stress, pain, suffering and medical expenses, and that she feared that her daughter, Payton, now 3, would grow up feeling like an “outcast.” Attorneys for the sperm bank argued that “wrongful birth” suits should only apply to cases where a child is born with a birth defect that was predictable. In this case, the girl, Payton, is normal and healthy. Being black, of course, is not a defect.
The judge threw out the case, but headlines have been misleading. The original suit—why, I don’t know—failed to allege negligence, which I would think would be a slam dunk. The suit can and presumably will be refiled with a negligence claim, and that’s res ipsa loquitur. (If a black child is born to a white couple, someone goofed somewhere.) There will be damages, but the question is how much and on what basis.
Your Ethics Alarms Ethics Quiz of the Day is this:
Would it be ethical for a court to hold that having a child that is the “wrong” color is a hardship, injury, or misfortune worthy of damages?
A court could, if it wanted to avoid the issue, simply base damages on the fact that the couple didn’t get the sperm that they bargained for, hence the child with the genetic qualities they bargained for, and pretend that race is irrelevant. That would be prudent and smart, navigating away from the shoals of a potentially emotional and ugly argument. It would also be irresponsible and wrong.
There are all sorts of other awkward elements here too. Since the couple is same-sex, it is not as if the mother in all-white couple with a mixed race child will be suspected of fooling around. Everyone will know it’s not the couple’s biological child no matter what color the child is. Most will presume adoption: I would.
Are parents permitted to prefer their own race over another, at least regarding family members they get to choose? If not, why not? If society has not progressed to the point where racial differences literally have no significance and mean nothing, would be ethical for a judge or jury to pretend otherwise?
My call: the fact that the child is mixed-race adds to the damages justly due the parents.
If it were my family, however, I would accept the partial refund and skip the lawsuit, in the interest of my daughter. No child should have to learn that her parents went to court to get money to compensate them for the misfortune of her birth.
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Pointer: Jonathan Turley
Facts: Washington Post
Graphic: Jonathan Turley
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts, and seek written permission when appropriate. If you are aware of one I missed, or believe your own work or property was used in any way without proper attribution, credit or permission, please contact me, Jack Marshall, at jamproethics@verizon.net.
Ethics Alarms 
While I understand the legal arguments/positions of the parents, and the clinic screwed up, this case screams, “ICK!!!”. Perhaps prudence should prevail over demands for justice or compensation. Either way you look at it, there is still the insinuation/conclusion that the parents don’t believe that they got the child they bargained for. How you calculate damage for that is a bit of head-scratcher. More importantly, what damage or harm will that do to the daughter when she grows up and finds out that her mommies really didn’t want her but wanted a different kind of baby? That is going to be some expensive therapy down the road.
jvb
I agree completely.
And yet so many movie comedies have been made with this basic premise. Lousy ones, but still…
Yep. But, then there are the Zombie baby movies. Those are classics.
Am I having déjàvu or did we have a quiz like this last year?
Ah I see its one of the related post links.
Good memory. I should have mentioned that I discussed the case last fall, but them that would give away my quiz answer. That post focused entirely on the reaction of the parents. The quiz is more abstract, and my intent is to focus on whether it is ethical to pretend that uncomfortable truths don’t exist.
I am not sure damages in the sense of compensatory harm to the plaintiff should be allowed. A refund should be allowed on pure contractual grounds. And the law should proscribe liquidated damages large enough to discourage the clinic’s negligence.
I think that because this is a same sex couple, the lawsuit screams “ick” and it is bad taste for the couple to pursue it. But, if they were a hetero couple, damages would be warranted. Married couples seeking sperm donors try as much as possible to get a match that will look like the husband — down to blood type. Many couples choose not to share with their children that their father is not their biological father. (I think this decision raises some ethical questions too.)
All this being said, I do know one lesbian couple that made sure that their children were related through both parents. They have two daughters and each mom took a turn having the kids. One time they used the brother-in-law’s sperm, and the other time they used a male relative on the other side. So, both daughters — although not full sisters — are biologically related through both moms’ families. So, in that instance, what if the hospital mixed up the sperm? I think there they should be compensated as well.
The ‘ick’ factor has nothing to do with the gender, race or sexual orientation of one or both of the parents. The ‘ick’ factor derives from asserting that a healthy, mixed-race child, conceived through artificial insemination (albeit compounded by the clinic’s negligence) is somehow not what the parents bargained for when the contracted for a child. That just smacks of narcissism, self-indulgence, and conceit by the parents. How are they going to explain to their bi-racial daughter that they sued the clinic because they didn’t get what they wanted which was a healthy Caucasian child? What normal, well-adjusted adult would do that to a child? If they were my potential clients, I would have kicked them out of my office after a severe dressing down.
jvb
I’m referring to the parents’ conduct as “ick.” I can see circumstances (as I outlined) where this should be pursued, but this is not it. And even then, absent a quiet settlement out of court, the parents shouldn’t pursue it.
I think the facility should have refunded the full amount. They messed up. As for damages, I would say no. What would be the basis for the damages? You wanted a baby, you got a free, healthy baby because they messed up, what damages? I can see two likely reasons for them to be upset over this.
(1) They planned on telling the child that she has no father, but both women are her two mommies. This is made more difficult by the mixed-race child. As Jack pointed out, there will be no need to explain the difference with a same-sex couple, no one is going to think there was some infidelity involved. I don’t think the company should be responsible for the outcome not being convenient for the lie they planned to tell the child.
(2) One or both of the women are racist. I would then put this in the same category of the customer who demanded their delivery person not be black. I would also wonder if this child needs to be given up for adoption if that is the attitude of the parents.
Now, if this was a heterosexual couple and the sperm to be used was the man’s own (there are several reasons for this) and the wrong sperm was used, I would say damages are in order. Why the difference? In the case above, the couple purchased a stranger’s sperm to conceive a child. That child would always have a stranger as a father. In the second case, the father didn’t get his child. This would be similar to the case above if it were determined that the wrong EGG was used. In that case, I would say damages are in order.
I agree with the comment above that this child is in for some serious issues when she finds out her parents didn’t want her and though they were owed damages for having to raise her.
How is the creation of a child, in any state of being, ‘an injury’ to a parent?
The logic that implies kind of tears apart any belief that the law is there to ‘protect human life’, or ‘dignity’, or whatever really.
It is a collision of ethical frameworks. On one hand we have a service/product not delivered as specified. On the other hand we have a little child who only wants a few simple things- love, nurturing and inclusion in a family. Certainly if the product didn’t live up to contracted agreements, a “refund” or “exchange” would be the market rules…
But the “product” is a human with the needs specified in sentence 3 above. And the mere notion that a child may even remotely find out about their parents dissatisfaction with them could be devastating.
Ugh.
And yet, how many times have the courts negated legally completed adoptions because the baby needs to grow up in the culture attached to his/her skin color?
How many times? I’m asking because I don’t know.
I know of three. There are probably many others…2 Native American (who are no more or less “native” than I am) and one black, all three mothers.
I remember this case, and I remember thinking that the mothers reactions were awful; the white community they lived in was too racist to accept her, the black community at large was too racist to accept her, it was an undue hardship on their family. That could all be true, but do you really want your kid to grow up knowing that mommy went on the rampage because you were the wrong color? The optics are AWFUL.
That said, this is more serious than a “tee-hee-hee oops” from the clinic. And to answer the question: It would absolutely be ethical to find in favor of the plaintiffs, I just wish there was a significantly less public way to do it.
That is why I suggested liquidated damages set by statute.
The American South, presumed racist hotbed, is lousy with black kids adopted by white parents. They do fine. The whole “everyone else around us is racist so that’s why we don’t want a Black baby” rationalization doesn’t fly any more in the Midwest than it would there. We know who the racists are here.
Is the baby not human? Yes? Then they got what they paid for as race is an artificial category created by man.
There’s this movie about… Wait! I already commented that in the original post. 🙂
I still think the mothers are messing up. Unfortunately it is the kid that is going to grow up with issues.
I seriously hope the couple gives up the baby for adoption. In this identity-obsessed world, I am convinced that the least risky move for the sake of the child’s long-term health would be for her to be raised by someone else.
Forgot to answer the quiz question. Yes it would be unethical. I refer to the font of wisdom, Mick Jagger, who sings: “You can’t always get what you want…but if you try sometimes, you might find you get what you need.”
I second that. These women are awful.
Come to think of it, they may even be Ficks for having dragged the legal system into their sordid world.
To truly qualify as ficks, they would have to release a statement saying: “Hey, the sperm bank screwed up, and if we can get some cash out of it, its worth a little trauma to our daughter down the line. Besides, she may get hit by a bus before she’s old enough to surf the web…”
Hah. Got it. Give them time, they may get there.
I HAD an opinion on this – and really wanted to take the quiz – normally I would love to take any quiz solemnly without “cheating” (reading on), but I was reading this today standing in a parking lot, reading it on my phone, and I am no good at typing stuff on my phone, so I scrolled, and read all because I was dying of curiosity to see what people were saying. NOW, I have no opinion! Ha ha!
“Would it be ethical for a court to hold that having a child that is the “wrong” color is a hardship, injury, or misfortune worthy of damages?”
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Seems to me that were it reversed – a black lesbian couple desiring and paying for a black child – that to have a white child pop out would be seen and understood as a grotesque irony and not a welcome one. It would have al the tones of the rape of black women on the plantations, and thus the ‘hardship, injury, misfortune’ would be real.
If one is allowed to see it in those terms, then one is also allowed to see it in reverse.The white couple wanted and paid for an all-white child. Why would they be required to justify themselves? Instead, they got a semi-white child. Let us suppose that for whatever reasons they had ‘issues’ with blacks or blackness: Why should they not be allowed to have those issues?
Having read the previous post I understand that this couple’s motive is wrong for the lawsuit, but I note strongly in the tone of Jack’s other post and these comments that preferring whiteness, or desiring it over other color/race is NOT ALLOWED.
Is it that, now, you are not allowed to desire to be white?
Subquestion: What if they were to raise the child as ‘white’? A reverse Rachel A. Dolezal scenario? Bleach out her skin, straighten her hair, dress her up like Shirley Temple with red shoes and a matching ribbon? How would that fly in the NYTs comments section?
But how a white child appears with black parents is materially different from how a mixed race child will be regarded, including assumptions, when the parents are white. That’s why I didn’t include that comparison. They are related but not equivalent. I know several white couples with mixed race children, who are adopted. I know one single mother lesbian with a mixed race child, and I have no idea what the origin of the child was.
A personal question: Could you say, I mean would you be able to say, “I desire a white child, not a black or mixed-race child”? I want a white child who looks like me (and my wife).
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I guess if a black couple were to wind up with a mixed-race child it might not even be noticed, at least not much. The child would simply be lighter, which happens naturally anyway. Slightly lighter is even an advantage. Slightly Caucasian too.
But a white couple – white as lilies, white as the driven snow, white as Santa’s beard – when the child is born cannot help but noticing the off color, and everyone else notices: Based on that the ‘damage’ to the white couple is greater.
I guess I’ll be a lawyer after all!
What about that logic?
So, when blacks see a mixed race couple with a black woman and a white man, is that offensive because it has “the tones of the rape of black women on the plantations”? Maybe we should have a law against this?