Wrong Sperm + Wrong Race = Wrongful Birth?

This insightful guest blog post and its analysis of a current case is from Regent 3L and Family Law student Michael Pierce:


A same-sex couple in Ohio has filed suit against an Illinois sperm bank under the Illinois wrongful birth statute because the sperm bank supplied the couple with sperm from the wrong donor resulting in a biracial child. 


In their complaint, which can be viewed at http://www.chicagotribune.com/news/chi-pdf-read-the-lawsuit-against-downers-grove-sperm-bank-20140930-htmlstory.html, the couple attributes the entire debacle to the sperm bank's somewhat archaic record-keeping; the sperm bank only keeps hand written records as opposed to electronic records.  According to the pleadings, the couple intended to obtain sperm from donor #380, a Caucasian donor, and instead were given sperm from donor #330, an African-American man.  Apparently, the sperm bank employee who filled the couple's order mistook the handwritten number 330 for 380 and thus provided the wrong sperm.  Now the couple seeks damages in excess of $50,000 to compensate for not only the sperm mix-up, but also for the burdens associated with raising a child whose race is different than their own.


As of 2008, twenty-seven states allow parents to sue physicians and medical technicians for claims of wrongful birth, but these statutes are all written with similar language that ties relief to the presence of a genetic disease or defect that should have been diagnosed prior to the child's birth.  The Illinois statute at issue is no different, which is why I question whether the birth of a biracial child, who is in no way impaired by genetic disease or defect, can constitute a valid claim of wrongful birth.  It is a given that being provided the wrong sperm from a sperm bank would cause frustration, and there is surely emotional distress that accompanies the realization that your child's father is not the man you first supposed.  But a wrongful birth claim seems a bit far-fetched.  [Consider how another Ohio couple faced with an artificially assisted pregnancy from a wrong embryo handled it to accomplish the child's best interests at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957205.]


This little girl will likely face significant adversity in her life due to coming from a home where she has two mothers [see Rethinking Mom and Dad at  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462112],  particularly in light of the fact that her family is from Uniontown, Ohio, a highly conservative town.  What she should not have to deal with is learning, at some future point, that her parents sought monetary relief in court because of her race.  It creates an unnecessary complication to the life of a child who, as with every child, did not ask to be brought into this world.


The idea that in 2014 a child's race could form the basis for a claim of wrongful birth likely falls outside the purposes for which the statute was originally enacted.  While it remains to be seen how things will play out as this lawsuit progresses, the fact that Americans can embrace the expansion of marriage and families yet still make an issue of race within that same family is nothing short of surprising.  How far have we come?

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