What Measure of Damages?: ART Mistakes

Here’s one of the stories I have been meaning to comment on.  There is coverage from two different sources and you may need both of them to figure out the facts.    Here’s what I think the story is:  

A couple (husband and wife) in Ireland was using IVF with third-party sperm.   They were both white.   The selected donor was, I gather, also supposed to be white.    The donor actually used was  “Caucasian (Cape Coloured).”    That’s a label that refers to members of a mixed race community in the Western Cape, South Africa.  It seems that a staff member didn’t understand the implications of the label.  As a result the children born to the couple had darker skin than the either member of the couple.  In addition, the skin tones of the (two?) children differed, each from the other.   The parents sued the clinic and the news reported here is that a judge rejected their claim. 

I’ve written about ART mistakes a few times in the past, but I think this one is slightly different.    The couple intended to use sperm from sperm from a third-party and, it seems, from an unknown third-party.   It actually does not sound like they had chosen a specific provider, but rather that they were prepared to accept sperm from a person who met some general characteristic that they specified.    This seems somewhat different from where either the husband’s sperm is supposed to be used or where the couple has chose a specific person as the source for the sperm.  

It’s easy to say that the clinic should have been more careful, trained their staff more fully in the meaning of the labels they employed.     That said, how would you describe the damage in this case?    Let’s assume, as seems to be the case, that the children are healthy and well.   They are simply not quite the color that the parents wanted.  

I cannot think of a way to assess damages in a case like this that would not have appalling implications.   Is a dark-skinned child worth less than a white-skinned child?  

There are allegations that the children’s lives are more difficult–that they are taunted and teased because of their color.  That’s a very sorry commentary on society, but it’s also something that ought to make us think.     

There’s a not-so-very-old case in the US called Palmore v. Sidoti.   (It’s from 1984.)  A woman–white–had custody of her child from an earlier marriage.   She remarried and her new husband was black.   Her ex-husband–who was also white–sought custody of the child, asserting that the child’s life would be difficult because she would now be living with a multi-racial family.   The trial court accepted his argument and directed that custody be switched to the father.    The mother appealed to the Supreme Court, which reversed the trial court’s ruling. 

While the Court conceded that private biases a prejudice existed, it rejected the father’s argument.   

The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.

Of course the Constitution has no bearing on this case.  (It’s in Ireland.)  But it seems to me that something of the same reasoning applies.   Damages cannot be awarded because these children are not white.  

At the same time, I am not without sympathy for the parents here.   They did not undertake to raise non-white children and may be unprepared to face the challenges that multi-racial families face.   Perhaps it would make sense to provide them with some form of counselling or other support for the task they now face.  

So many people who become parents face challenges they did not imagine and did not wish to face.   Parenthood does not come with guarantees, not even when it is high-tech parenthood.   I don’t mean that we shouldn’t criticize a clinic that makes the mistakes here.    But there will be mistakes, and even where there are not mistakes, there will be unexpected outcomes.   That’s just part of life.


12 responses to “What Measure of Damages?: ART Mistakes

  1. Good grief! Call it like it is – these people are not suing the clinic because the children’s lives will be so tortured, they are suing because they won’t be able to LIE and pretend that her husband is the father of the children and everyone will assume that she had them with another man – which she did!
    This is what you get when you create babies with men you don’t meet ladies! I’m sure she’ll be a great mom and her husband will be an excellent step father. Yes, yes I know what the rules are – inheritance and what not. They should drop the case lest they be the ones that torture the kids.

    • I think that’s a very interesting take on it. If you think about it then the question becomes whether we should recognize that they have a right to try to present the children as genetically related to both of them. In that context, it is worth noting the point that Robert makes in a subsequent comment–the Roman Catholic church, a powerful Irish institution, does not approve of IVF. That’s an important element of the social context, perhaps.

      I do think parents should be honest with their children, but I also think that they should have the opportunity to define when and how they present information about conception to their children. The couple here has been deprived of a chance to do that.

      Circumstances always circumscribe parental freedom. A lesbian couple or a single mother raising a child conceived with third-party sperm necessarily face the conception question sooner rather than later. The mistake here threw this couple into that category as well. It’s an interesting way to think about it.

      • Well then I’d say that a child of a lesbian woman who intends to raise her child with the help of her lesbian partner is much better situated than the child of married straight couple. I’d say that’s not fair to the kid of the straight couple – time to even things out a bit.

      • Julie have(ing) the opportunity to define when and how they present information about conception to their children. Is a conversation about the birds and the bees – which is not the same as saying “This is your Daddy and these are your grandparents and aunts and uncles and cousins just like on Mommies side of the family” Presenting her husband and his family to her children as if they were actually her children’s relatives is wrong.

        The conversation about how her method of conception is irrellevant to the fact that they don’t get to pretend that her husband is related to the children and that is what they are upset about even if they ultimately would have told the chidren they wanted to pretend to the world at large that they created a child together and they did not – the clinic ruined their little charade -Boo friging hoo.

        Actually it would be great if every married woman who used donor sperm to get pregnant HAD TO USE SPERM FROM A GUY THATS NOT THE SAME RACE AS HER HUSBAND. There you go mandatory disclosure.

        • You can probably imagine the answer I am going to give you, but I’ll do it anyway in case there are new readers.

          Where a man and a woman plan a pregnancy together, even one using third-party sperm, where they go through the pregnancy together, and where they raise the child together, I don’t have the slightest problem with them teaching the child that that man is the child’s father. That’s the reality the child knows. Now at some point I think it is probably wise for them to tell the child that she/he was concevied using sperm from another man. But surely how and when they tell the child is up to them. Indeed, I think the reality is that they’ll tell the child many times, in age-appropriate ways. This is pretty much the way you give children lots of information. They need different things at different ages.

          I understand that you will not accept the husband as the child’s father, nor his family as the child’s family. But I think that is blinding yourself to the child’s view in all this. For a whole range of reasons, countless children are raised by adults who, though fully committed as parents, are not genetically related to their kids. Those kids have every much as right to feel safe and secure in their families as any other kids. I think there are ways to share the information about genetics with the children while not undermining their safety and security. I suspect everything I suggest seems to you like “lying.” Thus, we are bound to disagree.

          • I was talking about pretending to be related – pretending that there is no difference between the relatives on the mother’s side of the family and the functional family members on the functional father’s side of the family. I was raised in a house with a defacto father the same situation played out in your post – my brother’s father did not want to raise him paid no support but would not allow my dad to adopt so my brother thinks of my dad has his dad and the other guy as bio dad. I get it…Its the pretending to be related part I question

  2. As Julie has correctly pointed out, it is one thing for honesty between parents and children. It is quite another for the facts to be placed on display for all friends, acquaintances and strangers. I am not so sure it is about racism at all.

  3. We cannot ignore the fact that the Church holds great sway in Ireland with respect to the provision of ART services and how those services are viewed by the Legislature and the Courts.

  4. Marilyn I do not think you are thinking about the children’s interests any more than the rest of the crew. Children hate their privacy being put on display.

    • People who are parentally related to children maternally or paternally don’t have any PROTECTED RIGHT TO CONCEAL PARENTAL RELATEDNESS from their offspring or the world in general. In fact its the State’s presumption of paternal and maternal relateness is how the state determines who is and is not considered a parent of a newly born child. Relatedness I’d say is very public indeed. I don’t understand why lack of relatedness is treated as something people should be allowed to conceal (from children or the world at large) when people are not similarly allowed to conceal relatedness (from children and the world at large) – well at least not without going through the court system. Related or not related neither one should be treated as more private than the other it just seems unbalanced.

  5. Some of the families I helped reunite called me to say they’d make me a blog/website and maybe they will be more articulate than me – they are certainly more qualified to discuss these subjects than I am. I’ve spent a year reading this blog trying to learn other view points so that I think before I open my mouth, with all those families helping together maybe we can figure out how to change the laws that kept them in the dark so long. That’s all I wanted to do to begin with – I guess I’m still short sighted about lots of stuff.

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