I know I’ve been mostly absent. Just so you all know, it’s simply that kind of semester. I’ve been wildly busy with teaching and writing and so, until things settle down, this is on the back-burner.
That said, there’s a recently filed lawsuit that I have seen discussed many places. Need I say that I am tempted to add my own two cents? And so I shall.
The facts are pretty simple and this leads to a very brief version of them. An Ohio lesbian couple used sperm from a sperm bank. They put in a request for a particular donor and were given the wrong one. This was an error on the part of the sperm bank. In this case, the women, who are both white, had asked for a white donor and they were mistakenly given a Black donor. Thus, the resulting child is mixed race. And they’re suing for damages.
Many people have found this lawsuit troubling. I don’t think it has much to do with the parents being a lesbian couple–I think you’ve have the same issues with a straight couple. As some frame it, the question the case raises is whether they can claim to be harmed because their child isn’t white.
Now you can readily see why that is a disturbing claim. It smacks of “this isn’t the child I requested/purchased” and thus taps into the concerns about commodification and baby-selling that surround use of third-party sperm.
But even for some who don’t buy the baby-selling point, this claim is troubling. The “defect” in the child is that it isn’t white. Can that really be a defect? To see it that way is to be racist. And what are the consequences of litigating a case in which the parents of the child make that argument? How does the child not suffer?
Now as I say, I’ve read a lot of commentary out there, and I’ve tried to summarize the main threads. But I actually think there is another way to think about it, and I want to toss that in the hopper. There’s several points to make, so bear with me.
First off, I think everyone agreed that the sperm bank messed up and so it is appropriate to sanction them. Maybe that’s a fine–payable to the state–rather than damages. But let’s not lose sight of the point of agreement.
Second, I do think there might be damages owed the users of the sperm. Let me start with a different hypothetical: Suppose a person really wanted to have a deaf child and so went to great lengths to obtain sperm from a donor that was certain to produce a deaf child. (I don’t think this is actually possible, but let’s just pretend–it’s a hypothetical, after all.) Now the sperm bank makes a mistake and gives the sperm that will produce a deaf child to a different client–someone who had expected a non-deaf child.
Of course, many things can happen and some children will be born deaf in any event, but this child (we’re assuming) was born deaf because of the sperm mix up. The parents need to make some adjustments in their lives. They might wish to learn ASL. They might want to have some counseling on how best to raise a deaf child–on issues about deaf vs. hearing culture, possible future treatments and accomodations, things like that. I think the sperm bank should have to pay for that. After all, it is their mistake that created the situation. It is not that the child is flawed–but rather than there are some special needs that the parents hadn’t planned on that can be attributed to the sperm banks error.
Is this case different? I have no doubt that both having a bi-racial child and raising a non-white child when you’re white are situations that present special challenges. I also believe there’s some expertise out there–you can learn a lot about the challenges and the choices. And one can think more broadly: Maybe you can get books for the school library your child will attend or supplemental teaching materials or stuff like that. Is there any reason the sperm bank shouldn’t pay for that? It is, after all, a business that makes its money providing sperm that it warrantees as meeting the descriptions it provides.
I suppose what this suggests to me is that there are different ways of thinking about a claim in a case like this. Perhaps some are more acceptable (to me anyway) than others. Perhaps that is something that a lawyer handling these sorts of claims needs to think about. And there is certainly the risk that, no matter how carefully the claim is drawn, it will be perceived as being grounded in racism. That, too, is something to think about. And that’s about as far as I mean to go here.