Ohio woman sues sperm bank after racial mix-up

Her complaint, if true, cries out for some legal penalty to attach to Midwest’s conduct. She lists a buffoonish set of errors, including taking the order over the phone—in ink, and with no electronic backup; the subsequent mistranscription of the anonymous sperm donor’s number (“330” was written for “380”); and a receptionist who seems to have doubled down on the error before Cramblett became pregnant, when it could have still been corrected. And to top it off, upon realizing the mistake, the company’s receptionist … hung up on Cramblett. The company did send her a letter of apology (oops!), and refunded the purchase price of the offending sperm. (The complaint doesn’t say how much that was, but it appears the price can vary substantially depending on a number of factors, including donor profile and sperm motility. One news report put the amount in this case at unspecified “thousands.”)

But is that all Cramblett should get? She’s asking to be compensated for her emotional distress, her medical expenses, and other “economic and non-economic losses.” Most of the complaint is about the emotional pain and suffering. She describes the difficulty of living with Payton in an all-white community, with its “stereotypical attitudes.” One of Cramblett’s uncles, for example, “speaks openly and derisively about people of color.” And she acknowledges her own limited cultural competence. (For instance, Mom has found it “stressful” to go into a “black neighborhood” in order to get Payton “a decent [hair]cut.”)

Some of these concerns are understandable, but she probably can’t recover anything for having to deal with them. In Palmore v. Sidoti, the Supreme Court said, although in the somewhat different context of child custody, that “the law cannot, directly or indirectly” give such “private biases … effect.” That probably means the money damages that courts allow juries to award in tort cases, like this one, aren’t available even if the family’s life will be hard because of bigotry..,

Whether we empathize with her or not, Cramblett is likely to run into another wall in trying to get compensated for her own heartache. Although sperm donor mix-up cases are rare, a New York court’s 2007 decision probably reflects the position the Illinois courts will take in this case. In Andrews v. Keltz, the judge rejected an almost identical claim for emotional distress. There, a Dominican mother and a white father had used in vitro fertilization in their effort to conceive their own biological child. But when the mother gave birth to a girl who was darker than both of them, they sued the clinic that had screwed up by using sperm other than the dad’s. The judge tossed out the emotional distress claim, citing a New York case that held “as a matter of public policy[,] we are unable to hold that the birth of an unwanted but otherwise healthy and normal child constitutes an injury to the child’s parents.”

In fact, the very name these cases often go by—wrongful birth—isn’t exactly engineered to lead to success. In reality, the cases typically involve garden-variety negligence: Someone mislabeled a vial, someone else didn’t properly clean the sperm spinner, and so on. But courts in many states have slapped the wrongful-birth label on these cases, as a way to signal there’s something sort of creepy about suing over the birth of a child. Wrongful birth? Really? We are talking about kids, right?

Yet courts recognize that something has indeed gone wrong in these cases, perhaps because regulation of these clinics is spotty and inconsistent from state to state. So they struggle to find and award some measure of recovery, if only to send a message to the defendants that they need to put better procedures into place. In Andrews, the court said that the father had a claim in connection with the mishandling of his sperm (apparently because it led to uncertainty about what had happened to his “contribution”). Here, the court could decide to award Jennifer Cramblett the cost she says she’ll need to absorb in relocating to “a racially diverse community with good schools.” That would make sense, and would also be a good and committed step for the family to take. If the case is successful, that’s a creative remedy.
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/ohio_sperm_bank_black_donor_mix_up_can_a_white_mother_with_a_biracial_baby.html

I think this woman's stress about having to travel some distance to get her child a proper haircut reflects her general distress that her child won't fit in in that community--not socially or in the school. But it also is a reminder of the sort of thing she wouldn't have to do if the child were white--as she is--and as she wanted

Problem is, the law provides no good remedies for cases like these, with sperm mix-ups. You can't return the child or exchange it

Not only did the sperm bank mix up the sperm, they didn't let her know about it until she was in her second trimester. Had they let her know in a much more timely fashion, she could have had the option of terminating the pregnancy.

I mean it just seems almost foreign to me that you would have to drive more than 10 or 15 minutes to have a hair stylist specializing in hair for African Americans.

The couple being lesbian does make a legal difference, not in whether or not they have a right to sue, but in whether or not they have the damages they claim. Unless they've constructed some story to hide the fact that they are lesbians (which if this was the case, it's now, by the publicity they've sought, completely shot)

Finn dAbuzz wrote:

The couple being lesbian does make a legal difference, not in whether or not they have a right to sue, but in whether or not they have the damages they claim. Unless they've constructed some story to hide the fact that they are lesbians (which if this was the case, it's now, by the publicity they've sought, completely shot)

"the story being shot" could increase the value of the damages they may end up receiving. I suspect the sperm bank's insurer is trying to find a way to settle this now (if they weren't paying attention to this before).

Clearly the sperm bank made a huge mistake which seems to demand more than simply the return of its fee, but if the woman's cause of action is to go beyond simple breach of contract, she must prove damages as a result of the sperm bank's negligence. It's not usually enough to simply say, "They made a mistake and it caused me emotional distress and now I have to move." If it was, there would be no need for the discovery process and a trial.

Although sperm donor mix-up cases are rare, a New York court’s 2007 decision probably reflects the position the Illinois courts will take in this case. In Andrews v. Keltz, the judge rejected an almost identical claim for emotional distress. There, a Dominican mother and a white father had used in vitro fertilization in their effort to conceive their own biological child. But when the mother gave birth to a girl who was darker than both of them, they sued the clinic that had screwed up by using sperm other than the dad’s. The judge tossed out the emotional distress claim, citing a New York case that held “as a matter of public policy[,] we are unable to hold that the birth of an unwanted but otherwise healthy and normal child constitutes an injury to the child’s parents.”
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/ohio_sperm_bank_black_donor_mix_up_can_a_white_mother_with_a_biracial