What Damages When a Sperm Bank Errs?

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.



46 responses to “What Damages When a Sperm Bank Errs?

  1. I think the banks are fairly well protected by historic cases that say you can’t bring suit against anyone for ‘wrongful birth’. They are also well protected by historic cases where a child cannot sue his parents for giving him a heritable disease nor can one parent sue another for having passed a heritable disease to their joint offspring. The best the law can do is to say that people are legally responsible for the care of their offspring whether they are healthy or unhealthy, whether they are the perceived right or wrong color, height, shape or personality.

    We cannot get to the point where we view these cryo banks as being the biological parents of offspring produced by their contract employees. All the bank is doing is providing a venue for men and women to have offspring together without actually having to meet one another and have intercourse. The contract employees want to have offspring with people they don’t know for their own reasons (typically money) and the clients want to have offspring with people they don’t know for their own reasons (typically because they want to raise their child without the other bio parent around so they can do it alone or with a partner they are in love with). The contract employees and the clients are reproducing with one another at their own risk.

    The bank’s liability really begins and ends with FDA testing for STD’s and communicable disease. Baring that they really can’t be held responsible for making sure that people get a kid that exhibits the qualities of the person selected from the catalog. It is possible for a tall person to have a short child or a musical person to have a tone deaf child with two left feet. People have to take responsibility of their own reproductive behavior and choosing to have a child with someone that they cannot physically see at the moment of insemination is a crap shoot. The child is not the wrong color the child is the color of the father the mother mated with and it was her choice not to physically see him to be sure for herself. She put her trust in the word of a giant company whose business is to make money distributing semen. They don’t care whether a woman gets “the right sperm” because they know they can’t be sued for giving her the “wrong sperm” because no child born is “wrong”. The cryo bank knows it can only be sued if a woman contracts a communicable disease from sperm stored in their facility.

    Too much trust is put into these cryo banks as if they are the other bio parent themselves and they are not. They just store the cells and provide a method where people can connect.

  2. i disagree with your analogy to the deaf child.
    i recall a case that ended with the ruling that there can be no damages for wrongful life. perhaps you know what i’m talking about? seems that would be very applicable here.
    as for making changes in your life, so, go ahead and make the damn changes in your life like everyone else. no one in the world is entitled not to have to make any changes in their life. I’ve complained in the past that ART leads people to a sense of entitlement thats out of sync sometimes with reality.
    now back to the case at hand. my heart goes out to that half black child when she finds out about how her parents raised hell because of the color of her skin. now donor 330 must e reading all about this and he knows who he is. if he has any conscience he needs to rise to the plate now, show up at the court and tell them quite clearly, if mom doesn’t want a black kid, well here is her black daddy ready to love her and care for her. this donor was convinced to donate because of propaganda telling him about the loving happy families he was helping to create, now that its clear this is not the situation, let him step up and help his own kid.

    • There are indeed “wrongful life” cases and I think what I meant to do was distinguish this claim from that claim. But many people wouldn’t make the distinction I do.

      From what I have read (and I confess I have not read a ton) I don’t think it is fair to assign the sentiments you have to the women involved in this case. They may love their daughter dearly and want to raise her just as she is. They may not want to change a particle of her being. At the same time, they may realize that, as a family, they will face challenges that were not anticipated. They may not know a great deal about what it is like to be multiracial or to raise a multiracial child when you are not multiracial, but they may know enough to know that there is work they should do to figure it out, precisely because they love their child just as she is. They may want to build a more supportive community for her, which means reaching out to other people (teachers come to mind) and helping them help their daughter. Often people who adopt children who are outside of their race educate themselves about the challenges they will face as a family, and perhaps these women feel the need to do that.

      None of this makes them less loving. None of this is about rejecting the child. TO may mind, it is quite the contrary–it is about accepting the child and doing everything you can as a parent.

      Now money will help here–money for professional counseling, money for resources and so on And the situation was created by the sperm bank’s carelessness. Is there any reason for letting the sperm bank off the hook?

      As I say, I don’t know for sure these are the facts, but I don’t know that they are not. Take it as a hypothetical if you like. Is there any reason not to have the sperm bank pay?

      • Well I have read a lot of the cryobanks contractual language and I believe they have standard language about not promising any particular result, appearance, not promising that the child born will inherit any of the traits listed in the profiles. I mean yes, race is extreem, but when you boil it down it could have been they wanted German (blond blue) and they got Irish (strawberry green). It could have been they wanted tall and they gout stout – there might be all sorts of perceived damages with that.

        I really think where you’d have a case with a mix up is if the mix up involved you not giving permission to the bank to reproduce you and they marketed you like a donor when really you were there to get your girlfriend pregnant and now you want your kids (that has happened several places OHSU for one, Irvine) Or I think you’d have a case if you contracted like aids from tainted sperm. But I can’t see how a sperm bank would want to open the door and let any claim go through based on wrong sperm unless it was a misappropriation fraud graft that sort of thing.

        • I don’t think the contract between sperm bank and recipient bars the recipients from suing in the event the sperm bank misbehaves or fails to use reasonable care. This is not inconsistent with saying that sperm banks don’t guarantee results: they don’t. But they are obliged to be careful and if things happen because of their lack of care, then the contract won’t usually protect them.

          • You know I’ve commented many times on the high chance of error because it all looks the same even under a microscope – the only way to tell whose is whose is with a dna test and then still handling and labeling would have to be watched like hawks with double and tripple check belts and suspenders. That is just to reduce genuine error.

            Then there is sloppy negligent behavior which I’m sure happens because it does all look alike and nobody will know the difference until the kid is born and they can’t exactly give the kid back for a refund so I’m sure there is a good amount of lazy “oh well” behavior that goes on when they might suspect an error. The chance of being caught is so remote so many years down the line. As long as the sperm is not transmitting disease to the woman getting pregnant of the communicable type the banks and employees are fairly safe from liability.

            Then there is a lot of graft and corruption which is easy to conceal. They can get as much as they want from patients who are fertile for free without permission. They can market the same vile a hundred different ways: you want Jewish? Sure it’s jewish sperm. Irish? French? Musical? A doctor? Whatever you want and here is a random made up donor number or a number for a guy the kid is not related to.

            We can’t really expect the cryobank to take seriously the connection between the child and their absent father or mother because that is the whole premise of the business; that it does not matter who you have the kid with because the kid is a product of their environment not their genes. Really the banks are just humoring people by letting them select physical traits anywy because in order to reproduce with people who work for a sperm bank you kind of have to not think much of inheritance even on a purely scientific and medical level you’d kind of have to dismiss the last 50 years of medical research on heritable disease as junk science to wrap your head around having a baby with a person you’d never met and would never meet.

            • It’s not about the sperm bank taking the connection between the sperm provider and the child seriously–because certainly as you say, in at least some cases (maybe many cases) that isn’t a connection that is going to be made/protected. I think it is about the bank taking its obligation to the users seriously. And I think many of them do. This really isn’t rocket science (as they say). It’s about having clear methods of tracking/labeling/accounting. And I think the vast majority of US banks do this well. The question (for me) is what to do about the outliers.

      • oh really. all the tortuous explanations in the world can’t get around the fact they are calling this child’s very existence as cause for damages.

        this is very different from a medical malpractice case in which case a dr is blamed for negligence causing a child to be born sick and disabled. in such a case, the dr is blamed for incompetent care causing a disability in what would have otherwise been a healthy child.

        in this case the child wouldn’t have existed at all.

        secondarily, she isn’t disabled. moving to another neighborhood is a choice the parents can and should make but its not “damages” in anyway shape or form like constant medical care or something like that.

        • I guess I just don’t see it that way. I think they could be saying that the bank’s carelessness has made their daughter’s life more complicated and the bank should pay to help sort out the complexity.

          I have an ill-defined and hard to articulate feeling that there really is some meta-issue behind our disagreement. It’s something like this–would they have gotten the same daughter no matter what sperm was used? Obviously the sperm used determines a whole lot of characteristics–but it is essentially the same person? I wonder if I’m asking about whether there’s a soul that inhabits the body and their daughter would have been their daughter no matter what packaging? I have this odd feeling that this is the underlying assertion I’m making, and I feel a little odd about that.

    • Ki,

      I disagree about ART leading to a sense of entitlement. ART allows people to act but its the feelings of insecurity and inadequacy that are the driving force behind them. It’s not as if this didn’t happen during the BSE in adoption prior to ART being available to people. I don’t think it’s fair to blame ART. For me it’s our child filled society and its attitudes toward the childless that is to blame.

  3. I think it is hard to make this characterization work. The problem is that the route to arguing that the sperm bank is responsible for your harm must be that they gave you the “wrong” child, and that harmed you. It’s not that the sperm bank, through some error, made this particular child biracial rather than white; it’s that the sperm bank gave you this child rather than some other child, and that mistake of theirs harmed you. Implicit in this almost has to be: you would rather they not have, it would have been better and easier if this child had never existed. Otherwise, why do you deserve damages?

    I’m tempted to say: children are not commensurable and you should be barred from claiming that you have been damaged on account of having one rather than another. That extends just as much to the deaf child as to the biracial child. The one interest I might want to protect here is when the intended parents are not interested in the child’s characteristics so much as they are in the child’s genetic relationships, e.g. if they arranged for the sperm donor to be a close friend or the brother-in-law of the birth mother. But even there I don’t really think money is the appropriate remedy.

    • I think we might have a profound difference in view that I find hard to articulate. (That, of course, is all the more reason for trying.) I don’t think the sperm bank gave you a child at all–not the right child, not the wrong child. The sperm bank gave you sperm and (from my point if view) that’s all. There is a child that was created using that sperm, true enough. But what made that child who she/he is seems incredibly complicated (and perhaps unknowable) to me. Thus, to me, it’s not about the child the sperm bank gave you. No matter what, you aren’t given a child and hence, it cannot be the wrong or the right child.

      I think instead that because of the sperm banks wrongful actions your family (not your child) has a challenge to face that it would not or might not have faced. And the sperm bank ought to help your family to meet the challenge it faces as a result of the sperm banks wrongdoing. It’s not that money is the remedy, really, but the money can be used to improve the situation and to ensure that the sperm bank is more careful next time.

      Perhaps what makes me most uncomfortable here is the idea that raising some children is more challenging than raising others. Of course raising any child is challenging. But denying the additional and specific challenges that some families face seems to me akin to arguing that we live in a post-racial world where we ought not to take race into account any more. It’s rather wishful thinking and destructive wishful thinking at that. And in a case where you can identify a specific challenge and tie it to an error on the part of the sperm bank, I think I’m okay with the bank having to pay out.

      • Who else gets to sue whom for being black? Could a black adult sue his mother and father for making him black? It’s a challenge to be black and one he would not have other wise had to face had his mother and father been white. Could a child with a representative sue his Mom and Dad for damages for having a heritable disease?

        Being a particular race is not a true handicap (socially challenging yes indeed in many cases) but it’s not a physical disability like one might get in a car accident then quantify the medical costs and lost wages and what not. I mean what exactly would they be quantifying? And if its classes in the child’s culture that they are unfamiliar with – is that not something that parents would simply do by virtue of being responsible for raising a mixed race child? The kid is this woman’s biological offspring – hers and whoever she mated and reproduced with, it’s going to be up to them and their respective partners to raise a mixed race child. Lots of people do it and few have ever gotten a stippend for it. I mean no they did not get what they wanted but they put their total trust in a system that is inherently flawed because she can’t confirm for herself who she’s having a baby with. If the bank had failed to prevent her from catching syphillis she’d definately have a claim for damages.

        • I don’t accept your initial characterization of the claim–that this is a suit for being black. It’s a suit over the carelessness of the sperm bank, carelessness that will result in the clients of the sperm bank having to do more things/spend more money to properly raise their child. That’s the claim against the sperm bank and (as a generally matter) it seems like a strong one to me.

          In essence I think there are two questions one can discuss here. First is whether sperm banks can be held accountable when their carelessness results in consequences for the users of the sperm. I think they should. Second, and what I think many here are talking about, is whether this particular consequence should be understood to give rise to anything we can recognize as damages warranting compensation.

          I think it is useful to separate the questions. That’s why I’ve used a hypo with a different sort of consequence–the deaf child. Should there be money damages there, to provide training in ASL, say? If yes there, then why not here? And if no there, why not? I get that the racial overtones in this case make it harder and maybe they mean we treat this differently. But that’s not the same question as whether one can generally sue a sperm bank where they mess up and give you the wrong sperm with some consequence resulting from that.

          • Yes but why couldn’t any of us sue our parents for our inherited traits costing us more money than if we had inherited some more desirable traits? Does it cost more money to raise a black kid than a white one? Presumably that might extend into the the adult life of this child and if so then what is his claim and against whom for how long and for how much.

            • In order to sue someone you have to claim they did something wrong, basically. A sperm bank that doesn’t keep track of its samples falls below the standard of care we demand of that industry. That’s why you can sue them. Just like (to take Kisarita’s example) a blood bank that mixes up samples. They owe a duty of care and they breached it.

              There are really at least two reasons why I cannot sue my parents for having a really myopic child. One is that my parents didn’t do anything we (as a society/culture) think is wrong. Sure, they were both near-sighted and so it was likely I would be, too, but that’s just the way it goes. (It’s possible to imagine a future world where this might change, I suppose. But it’s a long way from where we are.) They’re not like the sperm bank. They’re entitled to have a genetic child (me), even if that child will inherit all sorts of less than ideal traits. Two is that in general we won’t let children sue parents except in really really extreme circumstances. (And here I mean social/legal parents.). It’s just too complicated.

              Of course one can debate any of this and I’m not sure I’ll defend all structures. But I do think a negligent sperm bank is a different case.

          • OK but I think there is a huge distinction between either the woman or her child contracting a communicable disease from sperm that was supposed to clear hiv testing and say hep C, where damages would clearly be in order for medical expenses etc vs something like a heritable trait like a big nose or a heart condition or a surprisingly high amount of melanin for the child of a freckled redhead.

            Like where would it stop what if you chose a guy with 20/20 vision and your kid was nearsighted and crosseyed? Would the bank have to pay for vision and frames and corrective surgery they would not have had to pay for if they’d gotten the right sperm? And in that case could you really prove it was the wrong sperm if the color of the eyes was

            • I agree that this is where it gets hard. You’re asking what “damages” we would recognize. Don’t have a good answer. But if you can show concrete expenses (say having to learn ASL), then maybe that’s on the “ok” side.

              • Ahhh but Julie, having to learn ASL would mean the child was deaf and that the deafness was heridetary on the fathers side and I really doubt they would take a deaf donor with heridetary deafness. I don’t think he’d make the cut. A guy deaf from an industrial accident yes, but not one with multi-generational deafness because there just is not a market for that sort of thing it would not be worth the bank’s cost to store it to market it to test it. So Deafness would be a physical handicap where as being female or being black is not a handicap except for the social sigma outsiders attach to it.

      • Of course raising some children is more difficult than raising others. And there’s nothing wrong with families that face specific difficulties getting greater help. In particular, you could imagine lots of efforts to help parents raise kids who face the effects of racism—and parents who face the effects of racism themselves too, for that matter.

        The problem is not the couple’s (accurate) view that raising a biracial child involves special challenges. The problem is that those challenges are blamed on the child’s very existence. I don’t mean this in any deep philosophical way, I just mean: the claim is that the sperm bank caused their difficulties because, but for the sperm bank’s errors, they would not face them. But that’s because, but for the sperm bank’s errors, they would not have this child (who would not exist) but some other (white) child, who would not pose the same difficulties.

        It matters that we are imposing these costs on the sperm bank, on account of their error (rather than, say, on society as a whole, as a matter of corrective justice for the benefit of all kids who face racial disadvantage). This suit is not merely about sperm switching as such, but at the particular sperm they ended up getting, and the particular child that resulted. The sperm bank is liable not just for sending the “wrong” sperm in the sense of sperm from a donor other than the requested one, but for sending particularly objectionable sperm, particularly harmful sperm, that produced a child that made her parents worse off than they should have been. So now there is a hierarchy of kids, emerging out of the hierarchy of sperm that has long been established. And if you are a sperm bank and you are thinking about minimizing error, you had better make especially sure that your customers who want the more valuable kind of kid not get the less valuable kind by mistake, in case they sue you for the difference.

        • I’m not sure I know what you mean when you say that the challenges are based on the child’s very existence. I suppose it is true that if there were no child there would be no problem. But I might as well say if they had selected a different sperm bank that kept proper track of its samples there would be a child and there would be no problem like this. There are a lot of things that might have happened but didn’t.

          I don’t think there has to be an assertion that the sperm was objectionable or harmful. And I see (and acknowledge) that there will be lots of instances where mistakes in providing sperm will result in cases where damages are difficult if not impossible to assess. If I wanted a donor with blue eyes and got brown? No idea But here I can think of some very specific costs that can be attributed to the sperm banks mistake–counseling, say. And I don’t see any reason why it shouldn’t have to pay.

          Would it help to toss out a totally different hypo: Suppose a medical team badly mishandles a birth so that the child ends up alive but suffering from some serious disability. Would you say the that the medical team caused the disabilities? If they can in fact to be traced to culpable errors by the team then I would say that. What about if it was the case that this was a birth that had to be done by Caesarean, so that in the absence of any medical care the child (and the mother) would likely have died?) That means the care was needed, but wasn’t the woman still entitled to reasonably competent care rather than bad care? Someone else could have provided good care and gotten a different result, so maybe the bad care provider should be held responsible? (I haven’t thought this last part through and must dash.)

          In the same way, the mere fact that you were using a sperm bank doesn’t, to me, mean that the sperm bank is freed of all obligations to use care in the practice of its business. And if it doesn’t use what might be called “ordinary care” then I think it is responsible for the failing.

          My recollection is that you start from a position of disapproving of the use of sperm from a bank, right? I think that makes the entire enterprise suspect–including the initial request for race-matched sperm. But I generally am fine with using sperm banks, so for me the problem is how we deal with badly operated sperm banks.

          • Considering the bank used completely handwritten records (which is not the norm for a sperm bank today), transcribing the orders in the employee’s handwriting, and then sending all the samples based on that, I’d say the didn’t use “ordinary care” in making sure the correct samples were sent. I had to order from a website, it was all electronic. The fertility clinic that received the sperm also checked the number upon receipt to make sure it was correct then confirmed again with me at the time of the procedure. It seems that there was an additional failing by the doctor or clinic who inseminated this woman – the lawsuit notes the clinic didn’t realize the mistake until the woman learned of the error from the bank and then called the clinic and asked them to check the labels on the leftover sperm. I’m shocked they didn’t verify the donor number with her when she signed consents and had the procedure.

            • the bank should be sanctioned same as any other tissue bank caught making errors of negligence, regardless of the result.

              • to clarify if a blood bank was caught making such errors, they should be sanctioned even if no one was harmed by it. they aren’t liv ing up to safety standards and thats what they are being penalized for, not damages.

                • I see what you mean. This would most likely happen by levying a fine–not payable to anyone harmed, but to the government. It’s a regulatory scheme. But if the error did cause harm, should the blood bank also have to pay the harmed person some compensation? At least pay for expenses occasioned by the error?

              • I completely agree, though I think one or two people writing here do not. The question, then, is what should the measure of the sanction be. How do we relate it to the consequences of the error (if at all)?

  4. This story has been all over and I think that many people are judging this couple unfairly. The unfair judgement comes from underestimating racism. I have no doubt that white parents would be unprepared to raise a black or half black child regardless of good intentions. That is why many that adopt black children make special efforts to prepare the child. I cannot judge a white person for finding it too difficult to deal with and thus choosing to have white children.

    I’m black and spent one year at a HS with only a handful of black students. It was extremely difficult and not something I’d want to experience. So if anyone should sue, perhaps it’s the little girl when she grows up. As I said on another forum, there are donor conceived adults that are genuinely upset about their origins, lack of access, etc and some that are just fine with it. However, I have yet to meet a black person raised by a white family that was completely happy about it (no, I’m not against transracial adoption, I’m just a realist). My point in mentioning all of this is that sending white women sperm from a black donor is a big deal and the potential for damage is there. So in my humble opinion, the bank should be sued. The couple would then have enough money to move to a more diverse area.

    Imagine if a couple chose an open ID donor but received the sperm of donor that wanted to remain anonymous? Different scenario but still damaging.

    • I think you are right that the race element makes this a more difficult topic to discuss. Your example (about not getting and open ID donor) is useful for this reason–it moves it to a different context. That’s also why I used a hypothetical about a deaf child.

    • Well sure I think the kid has a case for damages but not because they have a black dad and white mom. I think they’d have cause for damages because their father is not held responsible for them and because they are denied due process and a ton of benefits and rights because of the deal their mom and dad cut working through the bank as a middle man.

      There is nothing peculiar about how the kid was made. Sperm fertilized egg. Same as everyone else on earth. It’s the social arrangement and agreement that is struck outside court that makes the kid be in a compromised position. I really don’t see the kid having a case for damages based on their race but rather the f’d position they and all other donor offspring are forced into having everyone pretend they don’t have a father because their mom wanted to raise them alone or with a preferred partner.

      • Of course you don’t see it, Marilyn. People who don’t have to deal with racism will often dismiss it as an issue. That’s how white privilege works. Besides, I can post articles of black and biracial individuals shot and killed by police and civilians due to racial profiling. Can you post articles of donor conceived adults shot and killed because they are donor conceived? Denied jobs or housing? Being DC is the least of this girls problems and I bet she’ll confirm that in about 20 years or so.

    • LorMarie i think thats an important comment you made about black children often being unhappy growing up in white households. All the more reason in my view that her dad should get involved and her moms should encourage and welcome that. but thats my fantasy, not likely to happen unfortunately.

      The irony is that lets one day this girl grows up and gets pissed off about the situation- she’ll be told to shut up cuz “would you rather not exist?” but her mom is entitled to sue for damages!

  5. In their position? I would want to sue too. I specifically chose a donor of the same ethnic heritage as myself because I did not want my child to have another heritage that I was not familiar with, and that I could not teach her about. My family is not diverse, and as they are the only legal/social family she will grow up with, I didn’t want her to feel even more “different” (on top of being donor conceived) because she had another racial or ethnic background that she didn’t share with a single person in her known family. I would feel wronged that my decision about what I felt best for the child (a decision I had the right to make as the only legal parent) had been totally violated. I don’t feel this decision is inherently racist. If I were married to an infertile man and we chose to use donor sperm, I would prefer a donor of the same heritage as my hypothetical husband, because the child would have a legal/social parent she shared that heritage with.

    • I think this speaks to the broader underlying question raised in the case: Is the careless sperm bank responsible for consequences of its own carelessness. I cannot see why I would answer that “no” except to make use of sperm banks unpalatable–which could be desirable if you think using sperm banks is wrong. But if you think using sperm banks is okay, then why would you not hold them accountable?

      You also raise (implicitly, perhaps) the second question I see: If you do hold sperm banks accountable, how to we measure “damages” in these cases? In the hypo you describe how to you put a value on that? Sometimes (as in my deaf child hypo) there might be quantifiable items–like lessons in ASL, say. That’s also what I was trying to illustrate in thinking about costs of counseling about issues when raising an interracial child. It seems to me that if you can point to actual monetary expenses those are the easiest things to claim.

      But there are intangible consequences, as your comment suggests. I don’t know how to value those and I don’t know what to do with that. It feels like thin ice to me and, were I a plaintiff or a plaintiff’s lawyer–I don’t know that I’d advance those claims. It’s too close to saying “I want money because I am disappointed in my child” which it seems to me I would never want to say or have said on my behalf. Maybe you all think this is too fine a line to draw, but I think it is about where I would draw it.

      • Well either way, I think the financial damages have to be high enough to prevent banks from being this careless in the future. If they don’t give a damn ethically, they’ll give a damn if it will hurt their wallets.

        • If you will forgive me for assuming the law professor role, your comment highlights one of the different functions of damages–to punish (and hence, deter) the defendant. That’s one reason we award damages. Another function (one I have focused on) is to compensate people for harm done. It’s good to think about the different functions and how they work together. It’s possible to imagine situations where the amount of money it might take to get the attention of the sperm bank might be such that it would over compensate the plaintiffs.

          • Julie there are times when companies are fined for bad deeds but it does not go to the customers. Like say an oil spill or something or environmental dumping maybe? I’m thinking you could take away their business and professional licenses and make them pay business and professional fines shut them down for a while for their careless handling of human tissue without compensating someone damages for not getting a child that looked they way they expected or was the wrong gender or who failed to develop into a star athlete.

            • Quite true. This is what I meant to suggest–that if your goal is deterrence/punishment then you might impose a fine, typically payable to the state. If you think compensation is also in order, then payment to the party concerned might be appropriate.

              It’s easy for me to agree that a fine is a good idea. The question is should there (at least sometimes) also be compensation? I think that’s a lot trickier, but maybe it depends on what sort of “compensation” the plaintiffs. Perhaps I’d treat concrete claims for remedial damages (I have to learn ASL, the child needs surgery, etc) different from disappointed expectations (she doesn’t have perfect pitch). This will result in a huge line drawing problem, of course.

              • Not so much line drawing problem really. So long as the surgery that’s required is not to pin back a kid’s ears, but rather to correct actual damage associated with the mishandling of sperm which is not of the hereditary type. So an inherited or genetic condition would be something you can’t sue your parents or any doctors for. But like a squeezed head from forceps or a broken leg being yanked out the birth canal something like that yes.

                • I do think there is serious line-drawing to do. Indeed, you are drawing lines in your comment. I sperm bank could mistakenly sell you a sample that should have been discarded because of the heritable traits in the sample. IF there is remedial action that can be taken to minimize the difficulties that child will face–maybe surgery for a cleft palate?–I have no problem saying the sperm bank should be on the hook. The line drawing–to me–comes in when you have to figure out you will count as recognizable harms and what you will count as remedial action.

    • Rebecca i am sorry to hear you feel that way, and i can only hope if this was not a hypothetical situation but a real live kid that was born to you, you would come to love her so much that you could only look at her as the most wonderful gift in the world despite the unexpectedness.
      But there is more.
      NO ONE gets to control what kind of relationship their kid will have with its family. No one no matter how jewish their family gets a guarantee that their kid will not convert to Islam for example. no one gets to control how their kid will turn out. and using ART does not entitle you more than anyone else in that matter.

      • I would love my child no matter what but I would be sorry she was missing out on having family she shared that with. I wouldn’t feel very prepared to immerse her in another culture that I am not familiar with. It has nothing to do with loving or not loving a child but about feeling inadequate at raising well a child of another heritage without having a partner/spouse or relatives or friends that share that heritage.

      • That was me, I guess it used a different name on my phone but… you don’t think there are any added challenges for a child who will grow up the only non-white person in their family, in a non diverse area? Prospective adoptive parents are often encouraged to think about that and what support they can provide the child if he or she struggles, before transracial adoptions for that reason. Being concerned about that doesn’t mean I or anyone else wouldn’t love their child. Nobody wants their child to have to struggle more, and some children growing up in a family of a different race, where no one “looks” like them, do struggle with identity issues. I preferred my child not have to struggle with that on top of already being “different” due to donor conception. That I tried to avoid that particular struggle for my daughter doesn’t mean I wouldn’t have loved her if the sperm bank made an error. I just would have been very sad for any additional struggles she had to go through as a result, and would have wanted the bank held responsible before they made that mistake again.

  6. This is a tough situation. While the sperm bank made a mistake the couple also looks bad by coming across as racist (even if they aren’t). Unless you are put in that spot it’s impossible to say you would have done things differently than this couple.

    The thing to me that is the most sad is that the anti ART, anti gay and anti non bio family groups exploit stories like this for their own personal agendas. This situation is very rare yet it will be made out that it happens often and parents who go these routes are all selfish.

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