"A beautiful, obviously mixed race little girl"
October 3, 2014 10:38 AM   Subscribe

"What happens, exactly, when a white family that wants a white sperm donor gets a half-black child instead? In the case of a lesbian couple from Ohio, it means a "wrongful birth" lawsuit against the sperm bank — two years after the fact. "

The wrongful birth lawsuit (read here), filed on behalf of the Ohio couple, states the plaintiff's fear that her "all white and unconsciously insensitive family," which has never been able to fully embrace Jennifer's homosexuality, could have a negative effect on her daughter."

"The couple reportedly moved from Akron, Ohio, to Uniontown to be near better schools and Cramblett’s family. Now therapists are advising them to move to a more racially diverse community."
posted by roomthreeseventeen (280 comments total) 21 users marked this as a favorite
 
Umm. I've thought about it, and here's what I've decided:

I HATE EVERYTHING.
posted by anotherpanacea at 10:43 AM on October 3, 2014 [71 favorites]


I have so many feelings about this I don't know which feeling to feel. Criminy.
posted by phunniemee at 10:44 AM on October 3, 2014 [3 favorites]


Or on lack of preview, what anotherpanacea said.
posted by phunniemee at 10:44 AM on October 3, 2014


How can you file a public lawsuit like this knowing that your child will almost certainly find about it years later? How horrible.
posted by grouse at 10:44 AM on October 3, 2014 [27 favorites]


I really don't see the problem with this suit. They're not trying to return the baby, but a sperm bank gave them the wrong sperm! That is a MASSIVE fuckup. The sperm bank was negligent.
posted by showbiz_liz at 10:44 AM on October 3, 2014 [94 favorites]


This is one of many reasons why some people shouldn't have children. They didn't want a child, they wanted a possession. Your children will do and be things that you don't like, but if you let them they can be the greatest part of your existence.
posted by blue_beetle at 10:46 AM on October 3, 2014 [13 favorites]


If this is how they react to learning about the donor's skin melanin level, I shudder to think how they'll react when they learn about his knobby knees, receding hairline and monetarist theories about economics.
posted by George_Spiggott at 10:46 AM on October 3, 2014 [25 favorites]


There's a strong lesbian-shaming vibe to this article I can't say I care for.
posted by angerbot at 10:47 AM on October 3, 2014 [11 favorites]


They deserve the money for what amounts to a medical error, but I can't imagine writing down such hateful things about my child. And capitulating to the racism in Uniontown rather than fighting for change... it's awful.
posted by miyabo at 10:51 AM on October 3, 2014 [4 favorites]


There's a strong lesbian-shaming vibe to this article I can't say I care for.

Which one? There are two in the FPP along with the court docs.
posted by poffin boffin at 10:52 AM on October 3, 2014


This is one of many reasons why some people shouldn't have children. They didn't want a child, they wanted a possession.

So what level of control should lesbian couples have in terms of the biological makeup of their children? None? If a heterosexual couple goes to a fertility clinic and the clinic accidentally impregnates the woman with a random person's sperm instead of her partner's, do they also not deserve to have children if they are upset and file a lawsuit?
posted by burnmp3s at 10:56 AM on October 3, 2014 [70 favorites]


why is everybody so horrible?
posted by young_son at 10:56 AM on October 3, 2014 [7 favorites]


Nice work reinforcing my anti-natalist philosophies, everyone.
posted by Faint of Butt at 10:57 AM on October 3, 2014 [8 favorites]


This story feels like a virus engineered to destroy the brain of a Fox News producer.
posted by haricotvert at 10:58 AM on October 3, 2014 [91 favorites]


If it's the rest of her family that is upset with the child's ethnicity, then surely they are the ones who should be suing....
posted by IndigoJones at 11:00 AM on October 3, 2014 [2 favorites]


I really don't see the problem with this suit. They're not trying to return the baby, but a sperm bank gave them the wrong sperm! That is a MASSIVE fuckup. The sperm bank was negligent.

I agree with this entirely, but they definitely could have made this case without bringing race into it . I'm sure their lawyer told them they needed to prove damages, but the way they explain those damages is gross and racist. (e.g. "Part of that learning curve has included getting her daughter's hair cut, which according to the suit requires Cramblett to travel to a black neighborhood, "where she is obviously different in appearance, and not overtly welcome.")

So, yep, everything is horrible.
posted by almostmanda at 11:01 AM on October 3, 2014 [50 favorites]


This is complicated. The sperm bank clearly fucked things up tremendously, and they should be held responsible. But how do you determine the damages? There's plenty of research showing that raising a child who is a visible racial minority in a non-inclusive environment is psychologically stressful for the child. So that represents an injury that the wronged party should be compensated for, right? I mean, it's cold, lawyerly logic, but it's hard to deny.
posted by mr_roboto at 11:02 AM on October 3, 2014 [16 favorites]


Um, in the pics the kid looks loved and happy. I don't like that this suit came up two years after though.

This might be more a symptom of a litiguous society as opposed to racism or sexism. I don't like the element of eugenics and a "wrong baby" though.

"wrongful birth" is not a good way to describe this.
posted by vapidave at 11:03 AM on October 3, 2014 [1 favorite]


They deserve the money for what amounts to a medical error, but I can't imagine writing down such hateful things about my child.

Yeah--the sperm bank was clearly negligent here (what if it hadn't been a question of appearance and instead they'd selected a donor after doing extra screening because of concerns about inheritable disease, for example?), but that court filing made my skin crawl.
posted by kagredon at 11:03 AM on October 3, 2014 [1 favorite]


I don't see what the problem is, she could some day grow up to be President.

The irony here is that this lesbian couple is trying to avoid diversity. They are saying there's no hope for their white bred community, so let's just pack up and go...kinda the obverse of the old trope of "there goes the neighborhood" when the first black family moved in.
posted by Gungho at 11:06 AM on October 3, 2014 [5 favorites]


If you sue for breach of warranty, you don't need to raise race at all. "I asked for #380 and I got #330." That makes complete sense and seems like a just and legitimate complaint. That's how these lawsuits should go: clinic makes error, clinic pays.

"I asked to keep my white privilege and I got a small taste of what it's like to not be a member of the dominant group," is not so much with the sense-making, justice, or legitimacy.

Sue your town and your family, and leave the clinic out of that one.
posted by anotherpanacea at 11:06 AM on October 3, 2014 [15 favorites]


There's plenty of research showing that raising a child who is a visible racial minority in a non-inclusive environment is psychologically stressful for the child. So that represents an injury that the wronged party should be compensated for, right?

I feel like they could have done a lot better by focusing on how the kid will be affected having to grow up around gross bigots and less on how the mom is upset that she can't seem to deal with having come from a family of gross bigots which in turn led to her being confused by the existence of black people or something.
posted by poffin boffin at 11:06 AM on October 3, 2014 [24 favorites]


"I HATE EVERYTHING."

this song may be for you (warning: lyrics).
posted by el io at 11:06 AM on October 3, 2014


burnmp3s:
"So what level of control should lesbian couples have in terms of the biological makeup of their children? None? If a heterosexual couple goes to a fertility clinic and the clinic accidentally impregnates the woman with a random person's sperm instead of her partner's, do they also not deserve to have children if they are upset and file a lawsuit?"
I believe it is possible to simultaneously sue your sperm bank over a valid case of malpractice/negligence and to not have and express bizarre attitudes about your child's skin color.
posted by Hairy Lobster at 11:07 AM on October 3, 2014 [24 favorites]


And either way, anywhere in the US that they move, someone will eventually find out that they are the moms who sued because they got a black baby and I'm sure we all remember how charming and friendly and loving 10 year olds are towards someone visibly different in their midst.
posted by poffin boffin at 11:08 AM on October 3, 2014 [3 favorites]


How are they trying to avoid diversity? As far as I'm concerned the only thing this mother is doing wrong is talking to the media about this - the media's goal being to get everyone in a tizzy about whether she and her wife are racist. Why are people not willing to believe this mother when she says:
"I don't find any problems with having a mixed-race child as far as I am concerned," Cramblett told NBC News, tearfully noting that she loves her biracial child and wants her to grow up in a more inclusive environment. "[Payton] will understand it wasn't about, 'We didn't want you. We wanted a white baby.' That wasn't what it was about."
posted by kitcat at 11:08 AM on October 3, 2014 [7 favorites]


The real reason why people are freaking out is because a successful suit would "prove" in a court of law, in a public forum, and in an undeniable way, that there really is systemic racism and denigration to non-whites in US society today, and that most people prefer to ignore and look the other way about.

I applaud her for bringing the issue to light. A successful suit might also make it possible for black children to sue for damages due to the racism they experience. (although i'm not sure who they woud sue). Setting a precedent etc..
posted by mary8nne at 11:08 AM on October 3, 2014 [30 favorites]


The big problem from what I see is that this is depriving the couple and their child of family. If the environment in which they moved to for better schools and to be closer to family -- an environemtn which, is, apparently intolerant and really not somewhere a mixed-race kid would in any way thrive -- is such that it is now recommended they move out for the sake of the kid, then that's a really shitty, really complicated situation that was caused by negligience.

We can go one for hours and days about how the parents should be like this or the family should be like that, but if it's not, it's not, and the couple knew that going in, and created their plans around an intolerant family in an intolerant neighborhood.

All of this is just so terrible and that poor child will bear the brunt of it because everyone involved in this has said and done things in a terrible manner.
posted by griphus at 11:08 AM on October 3, 2014 [14 favorites]


The more I read and think about this the more I totally agree that this is a lawsuit to get back one's white privilege. But if that white privilege -- or its financial equivalent, I guess, because the courts can't just white the kid if the parents win the case -- was an integral part to making sure this kid grows up right, where does that put everyone, in a realpolitik sense?
posted by griphus at 11:11 AM on October 3, 2014 [9 favorites]


Oh, Ohio. You haven't got much better since I left you 20 years ago. At least you aren't Indiana.
posted by rikschell at 11:11 AM on October 3, 2014 [2 favorites]


I'd hate to think that this is a clinical variant of the malicious store clerk who messes with you because he or she doesn't like your kind. You'd think a sperm bank's processes would make such capriciousness difficult, but I'm remembering that fertility clinic doctor back in the 90s who decided that any number of families would be much better off bearing his own offspring than what they thought they were getting.
posted by George_Spiggott at 11:11 AM on October 3, 2014 [9 favorites]


If I were this lesbian couple I'd have quietly informed the sperm bank they would be paying all of my child's tuition bills, including private secondary and any postgraduate studies, in exchange for not publicly suing the fuck out of them for gross negligence. Race wouldn't even factor in.
posted by echocollate at 11:12 AM on October 3, 2014 [15 favorites]


You know, I had the same reaction as everyone else upon seeing the headline, but after reading about the situation I'm not really feeling the outrage. It's a huge mistake on the sperm bank's part, and I'm not loving the shaming tone in the first article, even though I agree with this:

But what if the child had been born white? Presumably, they would have had no problem raising that child in an environment they admit is unwelcoming of non-whites and not the most accepting of LGBT people.

Like... yeah, that's privilege, right there. But at the same time, when you bring a mixed-race child into it there are very real concerns for the child about being raised in such an environment (I mean, besides growing up to be an emotionally stunted asshole, which would be the main danger for a white child), and it sounds like they're mostly doing the right thing and addressing those concerns. You can't just kumbaya that shit away.

Also, what a freaking adorable little kid. Sigh. I hope everything turns out well for her.
posted by sunset in snow country at 11:12 AM on October 3, 2014 [12 favorites]


When the receptionist returned for the second time, she asked Jennifer if she had requested an African American donor to which she replied, "No, why would I request that? My partner and I are Caucasian. You know that from our profiles."
posted by kagredon at 11:14 AM on October 3, 2014 [6 favorites]


If it's the rest of her family that is upset with the child's ethnicity, then surely they are the ones who should be suing....

They don't have standing to sue.
posted by bile and syntax at 11:14 AM on October 3, 2014 [2 favorites]


This story feels like a virus engineered to destroy the brain of a Fox News producer.
posted


With happiness, maybe.

"Tonight at 11, racist lesbians hate Joe Sixpack. Something's rotten on the Left, folks!"
posted by jingzuo at 11:15 AM on October 3, 2014 [4 favorites]


"I don't find any problems with having a mixed-race child as far as I am concerned," Cramblett told NBC News, tearfully noting that she loves her biracial child and wants her to grow up in a more inclusive environment. "[Payton] will understand it wasn't about, 'We didn't want you. We wanted a white baby.' That wasn't what it was about."

I think this is a level of subtlety that's going to be lost on the kid. She's going to get that her moms sued the sperm bank because she's not the color they picked out, and even if she does get it eventually she's going to spend her life dealing with that other people don't.
posted by bile and syntax at 11:18 AM on October 3, 2014 [11 favorites]


I believe it is possible to simultaneously sue your sperm bank over a valid case of malpractice/negligence and to not have and express bizarre attitudes about your child's skin color.

What attitudes specifically do you consider bizarre? It seems to me that it's objectively harder to grow up as the only mixed-race kid in a white family in a white town. The only reason it's weird in this case is that there's a lawsuit about how many problems racism causes and trying to put a dollar amount on it. If the article was just about this family and the struggles they have had and everything was the same except for the lawsuit aspect, I don't think people would have such a negative reaction to the parents.
posted by burnmp3s at 11:19 AM on October 3, 2014 [1 favorite]


"I asked to keep my white privilege and I got a small taste of what it's like to not be a member of the dominant group," is not so much with the sense-making, justice, or legitimacy.


It's not really a "small taste" for the kid though. Right now there's a choice: she can grow up in an environment with extended family that have at least some affection for her regardless of her race, but in an environment where her race won't be tolerated OR the parents can move somewhere her race will be tolerated, but away from a fundamental support network.
posted by griphus at 11:19 AM on October 3, 2014 [4 favorites]


As an aside, after reading the suit I'm just falling over from the fact there is a fertility clinic with a Dr. Spiritos performing inseminations. You might have to be Catholic to get that one.
posted by George_Spiggott at 11:19 AM on October 3, 2014 [20 favorites]


We have a Silver Lining Award winner!
The real reason why people are freaking out is because a successful suit would "prove" in a court of law, in a public forum, and in an undeniable way, that there really is systemic racism and denigration to non-whites in US society today, and that most people prefer to ignore and look the other way about.
Holy shit I did not think I would have a SINGLE positive thought about this. Thank you mary8nne.

OK, I'll just say that some things should never ever be considered in a consumer "I paid for a pound of X" light. That and where's the EULA on this?
posted by drowsy at 11:21 AM on October 3, 2014 [15 favorites]


Dealing with blackness has become burdensome and inconvenient for these two white mothers — because the biracial baby completely upended their decades of enjoying the spoils of white privilege.

I am sensing some bias from the author of the first story.
posted by bendy at 11:22 AM on October 3, 2014 [6 favorites]


The mothers found out about the screw-up while the birth-mother was still pregnant (and pre-viability, if my calculations are right). If this was really about "not wanting a black baby", steps could have been taken and the baby either need not have been born, or been quietly adopted out and they could have had a redo.

The fact that they decided to keep the baby, and for all intents and purposes seem to love the baby as much as parents should makes me want give them the benefit of the doubt here. Wrongful Birth is a weird cause of action and never comes up except in stories that are terribly sad and heart-wrenching. Who knows if the mothers would have pursued the suit had they gotten the wrong "caucasian" sperm? I think they still should have, but the damages argument would be different.
posted by sparklemotion at 11:22 AM on October 3, 2014 [13 favorites]


Some of the reactions in this thread seem to me weirdly like pro-life rhetoric. For a woman to say "I didn't choose to confront these particular challenges in child-rearing" and to seek compensation for having them foisted upon her by the negligence of a sperm-bank is not, at all, to express hostility to or devalue the life of the child. To suggest it is is to buy into precisely the logic pro-life types use when they say "if you choose to have an abortion when you find out your fetus has Down's Syndrome that means you think all Down's Syndrome people's lives are worthless!"

It is indisputable A) that America is a country with serious problems around the issue of race and B) that for white parents to bring up a black child poses challenges which are not faced by white parents bringing up white children. To acknowledge those facts is not, in any way, to endorse the racist attitudes which they recognize. Making this into some kind of measure of the women's love for their child seems retrograde and misogynist to me.
posted by yoink at 11:23 AM on October 3, 2014 [49 favorites]


Oh my, they have to start understanding black culture? Why exactly? I don't get that. I mean American culture has much black culture already integrated with it unless you take actual strong efforts to ignore it.

But back to the point at hand, why is there a necessity to raise a mixed race child any differently than a pure, aryan child unless you are doing it wrong? Obviously they will hit the brick wall of American racism but a child will hit a brick wall of generic American stupidity anyway. God bless.
posted by JJ86 at 11:25 AM on October 3, 2014 [3 favorites]


I'm sure their lawyer told them they needed to prove damages

Yeah, since they have to establish damages, they have to establish why #380 is superior to #330. Because they have to quantify the harm. If the wrong donor had been sent and he was just a different white guy, then there'd be very few damages.

But notice, in order for them to win damages, they have to show that #380 is superior to #330. So this is a lawsuit about how much better it is to be white than black. Sure, they're effectively demonstrating that we live in a white supremacist society. But what they should be arguing is that, because their child is non-white, she will be stopped-and-frisked unjustly, be discriminated against in housing and employment, and receive a lower lifetime income than a white child would have done.

Instead, we get a discussion of how difficult it is to ask black people to cut her daughter's hair.
posted by anotherpanacea at 11:25 AM on October 3, 2014 [27 favorites]


Wrongful birth lawsuits are never not wince-inducing, even when they're arguably justified. This is a new spin on that wince, but still. Wrongful birth. Now that's a weird tort.
posted by Sticherbeast at 11:25 AM on October 3, 2014 [6 favorites]


Dealing with blackness has become burdensome and inconvenient for these two white mothers — because the biracial baby completely upended their decades of enjoying the spoils of white privilege.

I am sensing some bias from the author of the first story.


Really? How would you "neutrally" describe As just one example, getting a young daughter's hair cut is not particularly stressful for most mothers, but to Jennifer it is not a routine matter, because Payton has hair typical of an African American girl. To get a decent cut, Jennifer must travel to a black neighborhood, far from where she lives, where she is obviously different in appearance, and not overtly welcome.

Like, yeah, sorry that the ladies at the salon looked at you funny one time and that this screwed up your plans to live in a lily-white neighborhood with "good schools" and politely not say anything when Uncle Alan starts going on about "the blacks" at Thanksgiving dinner, but your daughter's blackness is not a personal inconvenience.
posted by kagredon at 11:26 AM on October 3, 2014 [23 favorites]


plaintiffs will recover the cost of the sperm, and that's it.

They already did; second article in the post says that within a month of discovering the mixup, the sperm bank refunded them the cost of the vials and sent a letter apologizing for their error.
posted by poffin boffin at 11:27 AM on October 3, 2014 [1 favorite]


plaintiffs will recover the cost of the sperm, and that's it.

The sperm bank had already refunded their money.
posted by roomthreeseventeen at 11:28 AM on October 3, 2014


Wrongful birth lawsuits are never not wince-inducing, even when they're arguably justified. This is a new spin on that wince, but still. Wrongful birth. Now that's a weird tort.

Yeah, we've had a couple come up on Metafilter. I recall one about a couple that had twins instead of a singleton with pretty similar reactions: "Why didn't she abort one?" "That baby will know she was unwanted her whole life!" "This suit is specious there's no provable cost to raising two babies instead of one." etc. etc.
posted by muddgirl at 11:29 AM on October 3, 2014 [1 favorite]


I think I have this one figured out.

1. Was the clinic negligent? Yes. The clinic was negligent. They screwed up. They should be held civilly liable for the effects of their screw-up on the plaintiffs.

2. What are the effects of this screw-up on the plaintiffs, for which the clinic should be held liable?

The possible effects are twofold:

1. if it can be shown that the plaintiff believed abortion to be an option in cases of unwanted pregnancy, then the clinic would have been liable for any financial burden imposed by the abortion, plus non-economic damages (pain and suffering).

Since the plaintiff chose not to abort the fetus (assuming the scenario in which she believes abortion to be an acceptable remedy for unwanted pregnancy), the pregnancy was not an unwanted pregnancy, since the plaintiff exercised her free choice to carry the fetus to term.

2. If it cannot be shows that the plaintiff believed abortion to be an acceptable option, and therefore once the plaintiff was impregnated the clinic's error was effectively irreversible, the clinic is then liable for any and all hardships that result from this error.

However, given that some hardship/challenge would have been experienced by the plaintiffs in the course of raising their child even if the clinic had not made the error, the amount of hardship they would have faced in the absence of error must be subtracted from the amount of hardship caused by the defendant's negligence when determining the award that the plaintiff is entitled to.

Next, it is necessary to calculate the hardship that would have experienced in the normal course of raising their desired child, in order to calculate the actual amount of hardship that the clinic is liable for causing.

This is impossible.

Therefore, the clinic should be held liable and must pay the plaintiffs one dollar.

Edit: IANAL. But I like Ls.
posted by univac at 11:30 AM on October 3, 2014 [3 favorites]


I'm sure this family really appreciate all of your collective insights about how horrible they are. Especially since you know them personally, and know their case closely, from something other than the press (which, as we all know, fully understands nuance and sensitivity). Way to go, everybody, really.
posted by late afternoon dreaming hotel at 11:34 AM on October 3, 2014 [5 favorites]


not overtly welcome strikes me as an odd phrase indicating a very odd expectation. There are no "welcome white people" or "welcome black people" signs on the door of the place I ate lunch today despite it being owned by Asian people. I ate there anyway.
posted by soelo at 11:34 AM on October 3, 2014 [4 favorites]


It's never a lawsuit where anyone was going to look good, but a lot of people are being very snide. It's simple fact that being a visibly different race than your parents causes issues. It's simple fact that their child is going to be seen as black (because that's they are in American racial politics) and thus be massively disadvantaged in an American context, a disadvantage _they specifically did not choose_.

People are very uncomfortable when the huge price of being black in American is quantified, and so instead, a bunch of people are taking the opportunity to be superior at them and snipe about "white privilege" -- in effect, that they deserve it for being white and should just shut up.
posted by tavella at 11:35 AM on October 3, 2014 [19 favorites]


Oh my, they have to start understanding black culture? Why exactly? I don't get that. I mean American culture has much black culture already integrated with it unless you take actual strong efforts to ignore it. But back to the point at hand, why is there a necessity to raise a mixed race child any differently than a pure, aryan child unless you are doing it wrong?

Wait, are you asking why they believe that their visibly mixed-race child should become aware of her ethnic heritage? Especially if that child may possible end up being raised in a racially intolerant environment?

The child is not white. The child is never going to be white no matter how they raise her. She is mixed race and society will treat her as though she's mixed race, or black, but never white. Depriving her of a connection to the people and the culture that may understand and accept her better than her own family would be a disservice.
posted by griphus at 11:36 AM on October 3, 2014 [26 favorites]


The Sperm Bank should pay for this family to move to Portland. Bi-racial shame magically transformed to bi-racial pride via improved geography.
posted by bwee_ask at 11:37 AM on October 3, 2014 [3 favorites]


Let's say, just for sake of argument, that they had indeed been treated rudely at the salon. Am I being dense when my two thoughts are, 1) go to a new salon, and 2) this lawsuit is not going to improve your salon-going experience.

On the other hand, yes, people have a right to only, uh, accept the semen they actually want inside them. Seems pretty basic. This isn't like getting a latte when you had asked for café au lait.
posted by Sticherbeast at 11:40 AM on October 3, 2014 [1 favorite]


Yeah I mean on the plus side this will give her a better chance at getting into a posh preschool anywhere where diversity is celebrated instead of scorned.
posted by poffin boffin at 11:40 AM on October 3, 2014


Autostraddle has covered this piece and the comments have some interesting takes, particularly these ones about why that particular suit may have been chosen.
posted by freya_lamb at 11:41 AM on October 3, 2014 [1 favorite]


I don't like that this suit came up two years after though.

I only skimmed the articles but didn't notice anything about what's been going on for the past two years. It's at least possible that teams of lawyers on both sides had been arguing about this for a while before actually filing suit.
posted by ROU_Xenophobe at 11:43 AM on October 3, 2014 [5 favorites]


griphus spoke: The child is not white. The child is never going to be white no matter how they raise her. She is mixed race and society will treat her as though she's mixed race, or black, but never white. Depriving her of a connection to the people and the culture that may understand and accept her better than her own family would be a disservice.

Presumably the child is American. America is not a homogenous country, as hard as many people try to shape it as such. In fact, many Americans are not white. A child does not have to grow up identifying as their ethnicity, whether it is jewish, hispanic, black, asian, native american or whatever. A child can grow up as identifying as American as many have done for many generations. That is the potential magic of America.

I am really curious how a lesbian couple can be overlooked in a town that is racially insensitive. How can they avoid bias unless they are actively living a lie?
posted by JJ86 at 11:44 AM on October 3, 2014 [2 favorites]


We might finally learn just how much racism ends up costing people of color in actual money. Maybe this will be the beginning of a nationwide program in which the state compensates every born colored child?
posted by Foci for Analysis at 11:45 AM on October 3, 2014 [2 favorites]


How can they avoid bias unless they are actively living a lie?

By being white?
posted by poffin boffin at 11:45 AM on October 3, 2014 [7 favorites]


It's at least possible that teams of lawyers on both sides had been arguing about this for a while before actually filing suit.

IANAL, but it's unlikely that there was very much interaction at all between lawyers before a Complaint was filed.
posted by roomthreeseventeen at 11:45 AM on October 3, 2014


The plaintiff's belief that it was her white skin that made her feel "not overtly welcome" in a black salon -- as opposed to, you know, the inherent discomfort frequently experienced by any person who has been allowed to grow accustomed to being part of the visible majority when they enter a situation in which they are a visible minority -- should be what you see when you look up "white privilege" in the dictionary. Not overtly welcome! I can't get over it. What would "overtly welcome" look like, anyway, a roll of red carpet?

See also the pointed statement that they live "far away" from black neighborhoods -- they chose that distance for a reason, almost like until they had a mixed race child, they had no intention of interacting with people of color in their daily lives, let alone regularly patronizing black-owned businesses.

"Unconsciously insensitive" does not even touch the hem of the long, radiant garment of wrongness contained in the wording of that lawsuit. The mind reels. Poor kiddo.
posted by divined by radio at 11:46 AM on October 3, 2014 [15 favorites]


why is there a necessity to raise a mixed race child any differently than a pure, aryan child unless you are doing it wrong?

You might want to check out some writing by multiracial folks raised by white parents. The kid will have different experiences that the moms - even if they are awesomely antiracist - do not know in advance how to relate to or how to process.
posted by bile and syntax at 11:48 AM on October 3, 2014 [27 favorites]


For example how my mom, until the day she died, did not understand that I was lactose intolerant genetically and not because I wanted to inconvenience her.
posted by poffin boffin at 11:50 AM on October 3, 2014 [7 favorites]


"overtly welcome" is poor phrasing that was put together by the lawyer, not the mother.
posted by kitcat at 11:50 AM on October 3, 2014 [3 favorites]


I get calls occasionally with wrongful life lawsuits, and I usually advise them that here in Texas, we don't really recognize that (the most common one is people complaining that a vasectomy didn't hold and now they are stuck with a child they didn't want). The law here kind of treats the situation as you would expect a conservative state would: life is a blessing of god, so it cannot be a damage as a matter of public policy. People have tried to wire around that and claim certain economic damages, but generally it fails. Just not really viable here.

That being said, I did handle a case once in another state where the family bought sperm from a sperm bank because the husband carried a gene that the wife did, and a genetic problem would occur. So they bought sperm with the representation that the sperm was screened and it was negative for this particular gene. It wasn't. The baby got it. The claim was for the medical bills the family had to incur that it would not otherwise incur. The case settled fairly easy for a substantial sum because the medical bills were going to be high.

I mentioned that because it contrasts with this case. There is no obvious economic damage that this family incurred. They wanted a baby, and they got a baby. What they didn't get was a baby of the type they wanted. So what is the harm to them? Is it economic? They already decided to incur the expense of a baby, so is it going to cost something different to have a half-black baby?

This kind of goes back to the famous "Hairy Hand" case, Hawkins v. McGee, which is usually like day 1 contract class and is featured in The Paper Chase. How do you quantify the expectation interest here? Very hard.

It is really a tricky argument. For economic damages, you could try to get an expert to look at the expected cost of a white baby from birth to age 18 and then the cost of a half-black baby from birth to the age 18. I have no idea if there are such numbers or even a difference, but that could be one model. For non-economic damages, the parents would have to claim that somehow their enjoyment of their baby is compromised, or that they have to incur mental anguish over the fact. That's a really nasty argument to make.

I do not think the baby itself can claim damages. "I've been damages because I was made half-black" is not an argument that can be made; if you didn't have the genes you do, then you don't exist at all.
posted by dios at 11:51 AM on October 3, 2014 [11 favorites]


When I first saw this story in another place which didn't mention her wife, I thought, "this maybe makes sense - if both parents are white, they may not want it to be obviously that they used a sperm bank and she's not the biological child of both parents... might have been upset had her husband been black and they sent her white sperm..."

yeah, it's not quite the same given that they are lesbians. Though only impolite people would ask details, the fact that her partner doesn't look like a possible biological parent isn't really an issue.
posted by jb at 11:53 AM on October 3, 2014


A child does not have to grow up identifying as their ethnicity, whether it is jewish, hispanic, black, asian, native american or whatever.

A child who is mixed race growing up somewhere that being black or mixed race isn't considered acceptablewill not be given an opportunity to forget she is mixed race. There will be this aspect of her identity that her family doesn't share, that her neighbors and teachers and police officers (and possibly even family) look down upon and it will be a source of emotion of some sort, including, possibly, self-hatred.

Also: I am really curious how a lesbian couple can be overlooked in a town that is racially insensitive. How can they avoid bias unless they are actively living a lie?

The "we don't talk about it" gay family member is an American tradition as old as time itself. You can run out the black family that just moved in. It's a lot harder -- for some people at least -- to run out their gay child whom they raised even if they're not totally on board with their being gay. It's a lot easier to be tolerant of someone if they're related to you and, by extension, even if they just look like you.
posted by griphus at 11:53 AM on October 3, 2014 [11 favorites]


Sounds like the sperm bank royally fucked up and the family is trying to do right by their daughter by moving to a community that will provide a better environment for her, and they want the sperm bank to underwrite the costs of making this significant life change.

The means of obtaining this is a kind of dickishly-written lawsuit.

I had a problem once. I took it to a lawyer. I expressed my problem in a thoughtful, nuanced way. He write out a complaint to file with the court. The complaint made me sound like a dick, kind of. But I rolled with it and won my case.

I hate thinking about the kid finding out about this someday, but I'm inclined not to judge the mom too harshly. She thought she had choice and control over whose sperm was going to get her pregnant. She didn't. That's got to be upsetting in a pretty big way.

Hopefully the kid will get some kind of benefit out of this lawsuit and have a good life.
posted by prize bull octorok at 11:53 AM on October 3, 2014 [30 favorites]


Since the plaintiff chose not to abort the fetus (assuming the scenario in which she believes abortion to be an acceptable remedy for unwanted pregnancy), the pregnancy was not an unwanted pregnancy, since the plaintiff exercised her free choice to carry the fetus to term.

I don't think this is really a great way to approach this. One, because abortion is understandably going to be a really difficult for a couple using a sperm bank, when children are desperately wanted and "traditional" methods are off the table, and two because can we really not talk about aborting children because of their race, especially given that nothing close to that happened in this case?

Especially since you know them personally, and know their case closely, from something other than the press

Sorry to interrupt the regular-scheduled sneering, but all of my comments have been based on reading the linked court filing, so, yes, I know their case from the words that the plaintiff chose to argue that it should be settled in their favor.
posted by kagredon at 11:53 AM on October 3, 2014 [2 favorites]


A woman who decides to have a child with a male partner is able to choose the donor of the genetic material that will make up half of her child. Lesbians ought to be able to do the same. I might wind up needing to use a donor someday, and you can damn sure bet that I want the sperm I order to be the sperm I receive and use to create a human being.
posted by showbiz_liz at 11:54 AM on October 3, 2014 [11 favorites]


Dear white lesbian couple,
I am very sorry that you got healthy baby who is not the color your preferred and that raising her will open your eyes to circumstance you have never considered, but will also potentially, if you approach this right, enlargen your circle of extended family and cultural experiences.

Here's some homemade fried chicken, oven baked macaroni and cheese and collard green that have been cooking all day to alleviate your pain. Enjoy!
posted by Brandon Blatcher at 11:55 AM on October 3, 2014 [15 favorites]


It's worth pointing out that the suit is not just about race. The parents had wanted to control their kids' parentage, not only because, hey, sperm is by-invitation-only, but also so that their two children would be genetically related to one another. Didn't happen, because negligence.

I'm not saying that this suit isn't still super duper uncomfortable for many reasons, but this is not just about white ladies complaining that the salon is too far away.
posted by Sticherbeast at 11:56 AM on October 3, 2014 [21 favorites]


It blows my mind that people can be so quick to judge this family. "Suing to get back their white privilege..." my god. Do you guys read Rebecca from Fosterhood? She talks so much, and so sensitively, about the complexities of being a white mom to black & mixed race daughters, how carefully she tries to negotiate her children's multiple cultural heritages but how easy it is to make mistakes, and how every single person she encounters is so quick to tell her she is doing it wrong. Hair is a super fraught subject and definitely something she expends a ton of energy thinking about; if it's something you're trying to negotiate thoughtfully and sensitively, it is not simple at all. These are different issues that what it means to grow up black in America; it's about living in a family that doesn't fit into most people's ideas of what a family should look like.

I don't think for a single second Rebecca regrets what she's doing, or mourns her white privilege, but I think she would be the first to say that what she's doing is hard. It is something she chose; she is doing it in New York City, one of the most diverse places in the country, with a huge support system around her, she spent years thinking about these issues before deciding to do it herself, and it is still really fucking difficult, and easy to screw up, and to feel like you're damaging your kid irreversibly if you step wrong.

And these two women are gay, and living in an openly intolerant community, and don't have any kind of positive support system around them, and the sperm bank fucked up and was just like OOPS, SURPRISE, HERE, GO DO THIS INCREDIBLY HARD THING WITH NO PREPARATION AND NO HELP FROM ANYONE, and when they try to get compensation for that, people decide that means they're racists who don't love their daughter and just want their white privilege back?
posted by pretentious illiterate at 11:56 AM on October 3, 2014 [94 favorites]


It's an uncomfortable suit for the following reason: It puts down in hard, cold terms that it sucks being black in the US more than it sucks being white, and these people didn't want that. That's about it. Nobody wants to put their kid behind from day one, but this faces that reality.
posted by jimmythefish at 11:58 AM on October 3, 2014 [12 favorites]


and also so that their two children would be genetically related to one another.

I'm not sure I get the issue here, though. Payton is their first child. Other than the fact that she has the "wrong" donor genetic material, there's no reason that she can't be biologically related to her younger siblings.
posted by roomthreeseventeen at 11:59 AM on October 3, 2014 [2 favorites]


tavella: It's never a lawsuit where anyone was going to look good, but a lot of people are being very snide. It's simple fact that being a visibly different race than your parents causes issues. It's simple fact that their child is going to be seen as black (because that's they are in American racial politics) and thus be massively disadvantaged in an American context, a disadvantage _they specifically did not choose_.

People are very uncomfortable when the huge price of being black in American is quantified, and so instead, a bunch of people are taking the opportunity to be superior at them and snipe about "white privilege" -- in effect, that they deserve it for being white and should just shut up.


As someone who is mixed(although, not half black)... i agree with this. Although i'm in the reverse situation where i look whiter than my mom.

I think it struck some particular "ha HAAA take that honkey!" chord, and it's really tiresome honestly.

I think this is more engineered to short out your average feminist progressives brain than a fox news anchor. There's big, legitimate questions of bodily autonomy here with the sperm bank fucking up, and there's also legit concerns with the fact that this country really doesn't give a shit about women and that well, that isn't really enough to win a worthwhile court case. Appealing to white supremacy was honestly their best chance to get any justice here.

It's totally fucked up, and i'm completely unsure with how i feel about it, but i think everyone going "wow what stupid racist fucks" needs to stop and think about the bodily autonomy angle. And if you're too busy going "i don't care they approached this really grossly!" then maybe think about why they approached it that way, because how the fuck else could they have while also being taken seriously?

I have to take this, partially so my head doesn't explode, the way prize bull octorok did above. This is like a lot of lawsuits, a "we can't really afford our life without suing you sorry" lawsuit which is like an american institution up there with baseball and hotdogs last time i checked. If they can get a decent amount of money from the clinic, they can move somewhere that isn't full of racist assholes.

I can at least, respect that. It's like, "ok, this happened, how do we make the best of it?". I'm willing to assume they're speaking in good faith and they really love and are ok with their daughter. And while i get why some here aren't, it still seems like almost a strawman to assume they aren't just to shovel poop onto them.

There really isn't a part of this that isn't gross, including a lot of the reaction i've seen online before it hit this site. A lot of people really want to assume they're the absolute worst kind of stuck up entitled mommyblogger types and also total racists. Ugh.
posted by emptythought at 12:01 PM on October 3, 2014 [26 favorites]


"this screwed up your plans to live in a lily-white neighborhood with "good schools" and politely not say anything when Uncle Alan starts going on about "the blacks" at Thanksgiving dinner"
posted by kagredon

I know you may not like it but America is (allegedly) free, and people can (allegedly) live as they like, in a way that suits them. So if that's what they want, why should they not get it?
posted by marienbad at 12:01 PM on October 3, 2014


yeah, it's not quite the same given that they are lesbians. Though only impolite people would ask details, the fact that her partner isn't the biological parent is not really an issue.

Just because it's "obvious" that they didn't conceive the child personally doesn't mean there aren't plenty of valid social and psychological reasons why gay couples will often choose to create donor set-ups where the children will resemble both parents and any siblings. (Relatedly, I wonder if this couple are going to stick to their plan of using the same donor and the other parent if they decide to have more children?)

(And, honestly, the assumption that if a couple with children is heterosexual, the assumption that they're both biological parents to all of the children is kind of screwy, too.)
posted by kagredon at 12:02 PM on October 3, 2014 [2 favorites]


America is (allegedly) free, and people can (allegedly) live as they like, in a way that suits them.

[DISCLAIMER: OFFER NOT VALID FOR NON-WHITE PEOPLE]
posted by kagredon at 12:02 PM on October 3, 2014 [2 favorites]


I'm pretty sure we are all mixed race. This is about skin color as opposed to hair color or eye color. The fact that it is an issue makes me profoundly sad and I refuse to accept this as a reality that will not change. When I was a child the notion that a gay couple could be wonderful parents was unthinkable. I hope that when my grandchildren are my age the notion that skin color is relevant will be considered a relic of a brutal past. I have no issue with the couple. Our society is sick and we need to be continually reminded of this.
posted by night_train at 12:04 PM on October 3, 2014 [1 favorite]


I don't see what the gender of the parents has to do with the lawsuit at all?
posted by nickggully at 12:04 PM on October 3, 2014


yeah, it's not quite the same given that they are lesbians. Though only impolite people would ask details, the fact that her partner doesn't look like a possible biological parent isn't really an issue.

I think they're going to get a lot more comments asking if she's adopted than they would if she were white, and a lot more invasive questions about how they had her. I think if she were white they'd get more "oh she looks like you!" comments.
posted by bile and syntax at 12:05 PM on October 3, 2014 [2 favorites]


Oh, Ohio. You haven't got much better since I left you 20 years ago.

<Dot>"Are we dead? Or is this Ohio?"</Dot>
posted by octobersurprise at 12:07 PM on October 3, 2014 [2 favorites]


There's big, legitimate questions of bodily autonomy here with the sperm bank fucking up

Fucking seriously. "A woman's body, a woman's choice! Unless I perceive that choice to conflict with some other opinion I have, in which case, tough luck bitch!"
posted by showbiz_liz at 12:07 PM on October 3, 2014 [13 favorites]


Fucking seriously. "A woman's body, a woman's choice! Unless I perceive that choice to conflict with some other opinion I have, in which case, tough luck bitch!"

Please point me to the comment where someone said that they think the sperm bank did something right, I must have missed it.
posted by kagredon at 12:08 PM on October 3, 2014 [5 favorites]


Fucking seriously. "A woman's body, a woman's choice! Unless I perceive that choice to conflict with some other opinion I have, in which case, tough luck bitch!"

But this was a mistake on behalf of the clinic. It wasn't deliberate.
posted by roomthreeseventeen at 12:08 PM on October 3, 2014


There's big, legitimate questions of bodily autonomy here with the sperm bank fucking up...

And what big, legitimate questions would those be?
posted by Brandon Blatcher at 12:08 PM on October 3, 2014 [2 favorites]


Why should sperm banks keep any information about the race of the donor?
posted by any portmanteau in a storm at 12:12 PM on October 3, 2014 [2 favorites]


I am really curious how a lesbian couple can be overlooked in a town that is racially insensitive. How can they avoid bias unless they are actively living a lie?

People see what they want to see. My girlfriend and I used to get "are you gals sisters?" all the time at places like the grocery store where people got used to seeing us together. And this was in Takoma Park, MD, right on the DC border, so not exactly Nowheresville, USA. And, you know, it's not like lesbians look so different from straight women.

(I'm mixed race and my girlfriend wasn't and except for both being female, we didn't look anything alike.)

(Also! My mom was white, and one time some people complimented her on adopting a Vietnamese orphan. I am not Vietnamese. People gonna see what they want to see.)
posted by rtha at 12:12 PM on October 3, 2014 [6 favorites]


It was a negligent mistake, which involved sperm being put inside of a woman who didn't choose that sperm. As a woman the idea freaks me the fuck out. If I decide to inseminate myself do I not have the right to pick the donor?
posted by showbiz_liz at 12:13 PM on October 3, 2014 [22 favorites]


I think many of you are seriously underestimating that Payton can't handle the facts of this when she's older.

Don't you think she's gonna ask why she's black and both her parents are white? What do you expect them to say?
posted by girlmightlive at 12:13 PM on October 3, 2014 [1 favorite]


kagredon: Please point me to the comment where someone said that they think the sperm bank did something right, I must have missed it.

It's not so much that someone said that, it's that they just blasted right by it without even tapping the brakes so they could get there "omg these entitled fucking racists!" on.

Like, that was some minor detail that wasn't even worth acknowledging, for the most part.

roomthreeseventeen: But this was a mistake on behalf of the clinic. It wasn't deliberate.

thats... not... the point. The point is that they did fuck up, it's not informed consent because of that. they're totally entitled to sue.
posted by emptythought at 12:13 PM on October 3, 2014 [3 favorites]


Why should sperm banks keep any information about the race of the donor?

Is that a serious question, or have you never met people before?
posted by rtha at 12:14 PM on October 3, 2014 [51 favorites]


any portmanteau in a storm: Why should sperm banks keep any information about the race of the donor?

I realize this may be interpreted as a slippery slope, but it's like pointing at a ski slope and calling it that. Why is that not legitimate information? Because it makes you uncomfortable? What other information isn't worth keeping? Height? eye color?

I think level of education completed or job or whatever is a silly one, how is it more silly than that? Why shouldn't people get to choose this?
posted by emptythought at 12:15 PM on October 3, 2014


Why should sperm banks keep any information about the race of the donor?

Do you just go to a clothing store and ask for "a shirt" or show up at a bar and say "one alcohol please"?
posted by griphus at 12:15 PM on October 3, 2014 [31 favorites]


It's not so much that someone said that, it's that they just blasted right by it without even tapping the brakes so they could get there "omg these entitled fucking racists!" on.

This is a pretty insulting way to say "people should only talk about what I want to talk about the way I want them to talk about it."
posted by kagredon at 12:15 PM on October 3, 2014 [6 favorites]


or show up at a bar and say "one alcohol please"?

So what if I do?
posted by prize bull octorok at 12:17 PM on October 3, 2014 [9 favorites]


Don't you think she's gonna ask why she's black and both her parents are white? What do you expect them to say?

The story about it being a mistake, but a good thing (because it's part of how we got you) works much better if their wasn't also a wrongful life lawsuit.
posted by Area Man at 12:17 PM on October 3, 2014 [4 favorites]


I'm pretty sure we are all mixed race.

Wow this will come as an enormous relief to all the victims of hundreds of years of systemic racism!
posted by poffin boffin at 12:18 PM on October 3, 2014 [54 favorites]


So, if a woman intentionally gets pregnant by a man who appears to be white, but actually has a significant AA or other ethnicity heritage, can she sue him for misrepresentation?

I totally get that the fertility clinic screwed the hell up and as such should be sued. But, imo it doesn't make the recipients any less assholes for their handling of it.
posted by edgeways at 12:19 PM on October 3, 2014 [4 favorites]


kagredon: like, yeah, obviously everyone who has thoughts about the fact that this case is about race is a big fucking misogynist who is just trying to score points

I get why you're angry that i phrased it that way, but i'm also mildly angry that no one thought that part was even worth discussing as far as i can tell. it's barely even come up here.

I think there's a difference between "people aren't talking about this the way i want them to!" and "this is a pretty important part of the context"

It can be both, but it's not like they're mutually exclusive and i'm just throwing a tantrum because people aren't having the discussion i want them to have. It's a legitimate point.

A hell of a lot of comments seem to be acting like race is the only issue here. I don't think that's some weird esoteric reading on my part.
posted by emptythought at 12:19 PM on October 3, 2014 [4 favorites]


Why should sperm banks keep any information about the race of the donor?

Because some races do suffer from disease or medical complications. For instance, blacks have higher instances of blood pressure, so someone who has a family history of this might want to avoid a black donor.*

On the plus side, we're pretty lice proof.

*Obviously this can be abused, but there perfectly legitimate reasons for tracking race.
posted by Brandon Blatcher at 12:21 PM on October 3, 2014 [5 favorites]


So, if a woman intentionally gets pregnant by a man who appears to be white, but actually has a significant AA or other ethnicity heritage, can she sue him for misrepresentation?

Unless that dude signed some paperwork guaranteeing the nature of his DNA the way the clinic most likely did, that's not really comparable.
posted by griphus at 12:21 PM on October 3, 2014 [10 favorites]


1) go to a new salon, and 2) this lawsuit is not going to improve your salon-going experience.

1) I don't know the area where they live. Are there multiple salons that deal with African-American hair? 2) I think the stylists would actually be very sympathetic to getting a mixed race kid when you didn't want one. Most black couples around here wouldn't want to have ended up with a half-white or Asian kid. What's more, a lot of folks feel some resentment around all the white couples who collect kids of other races to raise, a la Angelina Jolie.

I am very sorry that you got healthy baby who is not the color your preferred and that raising her will open your eyes to circumstance you have never considered,

I am guessing they considered it a lot, and they certainly have now.

Like I said, I don't know how close they are to an urban area, but dooming your kid to being the only representative of Race X isn't what a lot of folks are up to. I don't think that's unreasonable.

I also expect their daughter will have a VERY good idea of why it's harder to grow up mixed race, and why parents would have preferred that she not have to deal with the crap she's going to have to deal with.

I live in the San Francisco Bay Area and there are a lot of people who live here ONLY because they didn't want to subject their mixed race kids to their hometowns.

At least the parents are white. When the parents are non-whites with a white kid, everyone thinks the parents are the nanny when they pick them up from school or take them to the doctor.
posted by small_ruminant at 12:21 PM on October 3, 2014 [7 favorites]


FWIW, I know one white couple who have two black little girls and they pay for someone to come in and do up their hair once a month.
posted by small_ruminant at 12:22 PM on October 3, 2014 [2 favorites]


Of late, I've been reading more about what "better schools" really means and why you have to move away from the city if you have a kid, and I'm still confused. Sometimes, it's test scores, but the term is often used by people who say test scores are meaningless.

environment in which they moved to for better schools and to be closer to family -- an environemtn which, is, apparently intolerant

I think this may explain it.
posted by ignignokt at 12:23 PM on October 3, 2014 [1 favorite]


what i would say to the couple is something i've learned from personal experience - choosing to have a child, by whatever means, is a crapshoot - you get what you get and you deal with it - it may not be what you wanted or what you thought you could deal with, but that's how it goes

your child still needs love and direction and it's your responsibility to provide that

I am very sorry that you got healthy baby who is not the color your preferred and that raising her will open your eyes to circumstance you have never considered, but will also potentially, if you approach this right, enlargen your circle of extended family and cultural experiences.

quoted for truth - and although my personal experience with raising an autistic daughter has nothing to do with race, this is what i've found
posted by pyramid termite at 12:23 PM on October 3, 2014 [3 favorites]


Why should sperm banks keep any information about the race of the donor?

If you read the suit, after interviewing the couple about their preferences, the clinic gave them a selected set of donor profiles to read, each of them 23 pages long. It would be very strange indeed to leave race out of a process that detailed.
posted by George_Spiggott at 12:23 PM on October 3, 2014 [5 favorites]


I have a friend who spent hours and hours going over the sperm donor list. I can imagine she would be pretty messed up if the donor had been messed up - even with a donor who had the same physical traits she had picked, because she was even obsessing over their college majors. It was such a bodily autonomy thing for her. Even just being inseminated in a clinic when she'd never met the donor was a leap of faith and a bit mind-bending for her and even her friends.

The reason this family is writing out the information about race is because they are adding it to their damages. They may need to move, choose a more inclusive environment, seek out additional supports, have counselling and so on. For example, I have a family member who is gay and, OMG, we have some racist, homophobic relatives in the extended family. That family member keeps their orientation strictly under wraps - even though open everywhere else - because they cannot stand the trauma of comments that would follow, even as "jokes" from stupid family members. The family member has chosen to move across the country to get away from them - no need, then, to ever show up at family events - even though this person's immediate family members are very supportive and would never even *think* of making such comment. This family member is still undecided about having children, because of the worries they have about ever exposing a potential child to those extended family members. But this family member has total control over this and could make plans about it and already knows that they aren't going to have extended family support. The couple in the OP don't have that choice. Their daughter most likely will suffer in some ways, because that is not uncommon for biracial children in the US. And now the family must make a decision about whether future children will come from the same donor (and face similar challenges) or go with a white baby, which might isolate the first child and make her feel like a mistake. This is awful for all. But it seems clear from the article that they love their child and want to take steps to protect her. It's just that those steps are not steps they would have anticipated taking with the original "order" and so they are seeking damages.
posted by Chaussette and the Pussy Cats at 12:30 PM on October 3, 2014 [9 favorites]


Don't you think she's gonna ask why she's black and both her parents are white? What do you expect them to say?

They're going to have that conversation anyway when she realizes that someone besides Mommy Jennifer and Mommy Amanda had to be involved in the first place.
posted by Etrigan at 12:30 PM on October 3, 2014 [3 favorites]


The story about it being a mistake, but a good thing (because it's part of how we got you) works much better if their wasn't also a wrongful life lawsuit.

An interesting study argues white parents do a better job raising black kids if they acknowledge the politically charged realities of racism in everyday life:

"We wanted to have enough money to raise you in a community like this one, where our neighbors are involved in the struggle too, and also be able to visit Gramma and Grandad, and also give you whatever weapons you need in whatever battles you choose to fight or need to fight."
posted by feral_goldfish at 12:31 PM on October 3, 2014 [14 favorites]


They're going to have that conversation anyway when she realizes that someone besides Mommy Jennifer and Mommy Amanda had to be involved in the first place.

Yes, and she's going to ask why that person was black. It's a legitimate question, and I don't know what else they're supposed to say without lying to her.
posted by girlmightlive at 12:33 PM on October 3, 2014


Of late, I've been reading more about what "better schools" really means and why you have to move away from the city if you have a kid, and I'm still confused.

Yeah, it can definitely be dogwhistley, but it obviously depends on the speakers. IME it's about 40% people who genuinely care about their kids' education and want places that will give a well-rounded one, and about 60% people who are saying "i want my kid in a majority white school". "Moving out of the city" often parallels towards complaints about "urban violence," which pretty much means "black people".
posted by poffin boffin at 12:34 PM on October 3, 2014 [2 favorites]


I don't really know how things should work out legally with the sperm bank, but their plan to raise this child hinged on benefitting from racism. It was a plan that may have seemed good and convenient to them, but doing that propagates racism. I'm not saying they are racists or eugenecists or intentionally doing anything wrong, but the more you do stuff like that, the worse things get for everyone.
posted by ignignokt at 12:35 PM on October 3, 2014 [4 favorites]


The lawsuit leaves a bad taste in my mouth, but the US does have an overly litigious culture IMO, and in that context maybe it is reasonable. If the proceeds from lawsuit are used to help them to relocate to a more racially tolerant place, it is probably a good idea to sue for malpractice (wrongful birth is a bit .... harsh). It's a pretty ridiculous expectation of some in this thread that one child is going to undo the racism of an entire community. What an unfair burden to place on a child.
posted by ryanfou at 12:37 PM on October 3, 2014 [2 favorites]


It may have hinged on benefiting from racism, in a meta way. In a micro way, it hinged on benefiting from fitting into the community. This would be similar with any race- Asian, African-American... very few would be happy with this sort of surprise.
posted by small_ruminant at 12:38 PM on October 3, 2014 [2 favorites]


I took the "better schools" comment to mean that they had moved to an area which had good schools, but also totally white schools full of closet crypto racists who only wanted to be around other white people.

So basically, they would have been(questionably, but possibly at least educationally) good schools for a white kid, but now they're kinda hosed because their kid isn't white.

It seems like in some states a lot of the actually good school, academically, are also mostly white, so they might have been kinda fucked on that one even if they wanted a fairly diverse school at heart.
posted by emptythought at 12:38 PM on October 3, 2014 [1 favorite]


Just from my small circle, it would have been a much bigger deal for an Asian couple and their family, especially a straight couple.
posted by small_ruminant at 12:39 PM on October 3, 2014


White people, deliberately or unconsciously, procreate with other white people, producing white children, all the time. I don't really know why it's extra-racist when a couple has to choose to bear a child of the same race as they are, vs. straight fertile people who can do it thoughtlessly.
posted by muddgirl at 12:40 PM on October 3, 2014 [21 favorites]


Yeah, it seems like people are working overtime to ascribe the least-charitable motivations possible here.
posted by small_ruminant at 12:41 PM on October 3, 2014 [4 favorites]


their plan to raise this child hinged on benefitting from racism. It was a plan that may have seemed good and convenient to them, but doing that propagates racism.

Is this particular lesbian couple personally responsible for fighting racism in ways that other prospective parents and members of society at large are not? Should we institute a program where any woman who wants to have a baby gets random sperm and no one gets to pick the kid's other biological contributor? Or is this merely a burden that lesbian couples should assume?
posted by bile and syntax at 12:45 PM on October 3, 2014 [31 favorites]


See also the pointed statement that they live "far away" from black neighborhoods -- they chose that distance for a reason, almost like until they had a mixed race child, they had no intention of interacting with people of color in their daily lives, let alone regularly patronizing black-owned businesses.

Way to project. OutrageFilter at its finest. Anyway, why they chose to live where they live and why they chose the sperm donor they chose are no business of ours. As sucky as the lawsuit may sound they needed to be able to establish damages somehow. Actually $50K is pretty generous on her part, I didn't think anyone filed malpractice suits for less than seven figures these days.
posted by MikeMc at 12:45 PM on October 3, 2014 [3 favorites]


I thought that article did a really great job of summing up the complexities of this while being straightforward in identifying the parents' efforts to cling to their racial privilege. Derrick Clifton - I will be reading more of you!
posted by latkes at 12:56 PM on October 3, 2014


Incidentally Uniontown is only 0.32% African-American and more than 98% white.

That's a pretty staggering number. It means there are less than 10 black people in the entire city. Even most "lily white" suburbs I know of are only 95% white or so. It's hard for me to imagine a place having virtually zero black people without pretty severe outright discrimination.

Akron, where they moved from and are considering moving back to, is 13 miles away and is 62% white and 31% black.
posted by miyabo at 1:01 PM on October 3, 2014 [10 favorites]


I think that Derrick Clifton's article is pretty fair to the couple involved. More fair than many of the commenters here. The last two sentences summarize:
This confusion reveals a sad truth many blacks have known for generations, and one that their child will unfortunately learn when she gets older — that white people almost never have to seriously interrogate how white privilege and institutional racism make many social spaces violently unsafe for black people.

Until that is, they're forced to confront their privilege by circumstances out of their control.
posted by muddgirl at 1:01 PM on October 3, 2014 [6 favorites]


Seriously? How about we not concentrate on perpetuating the kinds of stereotypes that the little girl has probably already begun facing in her extended family.

The dishes mentioned are absolutely delicious and part of the black cultural heritage in America, lovingly served among family and friends. That couple is gaining access to that and other rich traditions and frankly should be thankful for the all the positive aspects of having a baby of mixed white and black heritage.

We're just going to gloss over how too much of that type of cooking isn't healthy.
posted by Brandon Blatcher at 1:03 PM on October 3, 2014 [8 favorites]


Maybe she likes hummus, falafel and dolmates.
posted by miyabo at 1:08 PM on October 3, 2014 [2 favorites]


Until that is, they're forced to confront their privilege by circumstances out of their control.

Except that choosing this route to have a child was totally within their control.
posted by Melismata at 1:08 PM on October 3, 2014


Well, at least they didn't ask for a deaf baby and not get one. Whew.
posted by adipocere at 1:09 PM on October 3, 2014


*sighs*
posted by Fizz at 1:10 PM on October 3, 2014


Except that choosing this route to have a child was totally within their control.

The Complaint states that both mothers had sexual abuse in their past and chose the donor route because they do not want to bring a man into their lives for the purpose of creating a child.
posted by roomthreeseventeen at 1:10 PM on October 3, 2014 [3 favorites]


So I grew up in a small town that had ONE black family. There was no overt racism there- one family, which tried very hard to assimilate, was not a threat. Their kid was popular enough in school-I think she even got dates, though I don't know, since I was too self-absorbed to notice anything other than myself. However, she had to be The Educator. All.The.Time. Can I touch your hair? Do black people sunburn? Etc etc all her life.

I don't think her life was miserable but it wasn't great. Even with the kindest of intentions, she was always Other.

(She moved out asap when she was 18 and now lives in a community that so far as I can tell is nearly completely African American.)
posted by small_ruminant at 1:11 PM on October 3, 2014 [4 favorites]


the US does have an overly litigious culture IMO

Oh, horseshit. Did you just come from a Chamber of Commerce meeting on the need for tort reform?

That's bullshit propaganda. Our legal system is based on the Seventh Amendment. It is an essential and glorious right.
It's anti-tyrannical: as Jefferson wrote, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
It's democratic and egalitarian: it is the most effective provision of our Constitution to permit the balancing of scales and equality of opportunity. It allows the poor to take on the powerful.
It's communitarian: it allows our fellow citizens to by guardians of the safety of the community and define for themselves what type of standards they want in their community.
It's just: it allows the orderly resolution of conflict without having to either resort to violence or accept unjust ends.

Saying we have a litigious culture would not be a criticism. We are supposed to have one. That's how we deal with issues here. The "overly" crap is just tort reformer nonsense constructed by Frank Luntz and spoonfed to the public by people Chamber of Commerce type groups.

Availing yourself of the Seventh Amendment is a good thing. It can make the community safer. It can achieve justice. It can mitigate against improper losses. And it also allows the system to send messages that certain complaints do not have merit. It can say "no, that is not something you can claim as a loss." It allows our society to define appropriate conduct and expectations.

This suit may get poured out, which will send a message. It may prevail. If it does, it is because people acting in good faith determined that there was merit to it and that justice needed to be done. What possibly could be wrong about that or deserving of sneering about being "overly litigious"?
posted by dios at 1:11 PM on October 3, 2014 [19 favorites]


(Well, it still ought to be more affordable.)
posted by small_ruminant at 1:13 PM on October 3, 2014 [1 favorite]


I believe it is possible to simultaneously sue your sperm bank over a valid case of malpractice/negligence and to not have and express bizarre attitudes about your child's skin color.


Not if the lawyer you hire is some $50/hr. racist.

Who do you think framed the suit and advised their client?
posted by notreally at 1:14 PM on October 3, 2014 [1 favorite]


Is this particular lesbian couple personally responsible for fighting racism in ways that other prospective parents and members of society at large are not?

No, they are not bad people. But they don't get to ride the Horse of Justice when their plan to reap the benefits of racism fail.
posted by ignignokt at 1:16 PM on October 3, 2014 [1 favorite]


oh good grief. You do not know their motivations.
posted by small_ruminant at 1:21 PM on October 3, 2014 [5 favorites]


I like echocollate's solution to this situation.

"Hello Spermatronics. This is our lawyer. You screwed the hell up. In return, you are going to pay for our child's tuition up to and including postdoctoral studies. You are also going to pay our moving expenses. Or, our lawyer can open up their briefcase and serve you with a very large lawsuit, and the public will know about your negligent business practices. Your move."

Personally, I'd be pretty concerned in this situation, were I a client of this business. If they can make that mistake, how lax are they in other areas? This is a big mistake (inasmuch as 'failing to deliver what you have explicitly promised a customer you will deliver' is a big mistake), and for me would make me seriously wonder, for example, how careful they are in genetic screening and disease testing.

I have to wonder why this wasn't settled out of court before it got to this point. There is no way at all the sperm bank walks out of this looking good.
posted by feckless fecal fear mongering at 1:22 PM on October 3, 2014 [7 favorites]


Seriously? How about we not concentrate on perpetuating the kinds of stereotypes that the little girl has probably already begun facing in her extended family.

Maybe. My uncle adopted a biracial child and my grandmother was apoplectic about it until she held him for the first time. She melted like butter and he was her favorite from that moment on. Sometimes people surprise you. I hope this little girl gets all the love and support she needs.
posted by echocollate at 1:23 PM on October 3, 2014 [2 favorites]


ignignokt: No, they are not bad people. But they don't get to ride the Horse of Justice when their plan to reap the benefits of racism fail.

They didn't plan for any of this, and they would only "benefit" from the racism if whatever judgement they obtain is enough to counteract the real impact of that racism on their lives and the life of their daughter. They don't start at the break-even point -- they start behind, because they now have to adjust to raising a mixed-race daughter in a hostile environment. All they're asking for is some help in getting back to equal footing.
posted by tonycpsu at 1:24 PM on October 3, 2014 [2 favorites]


Not if the lawyer you hire is some $50/hr. racist.

Who do you think framed the suit and advised their client?
posted by notreally at 3:14 PM on October 3


The lawsuit was written by someone most likely working on a contingency fee, not an hourly fee. Personal injury suits are almost exclusively contingency cases, meaning the lawyers charge the clients nothing unless and until there is a recovery. And the lawsuit was written as a way to try to define the lost expectation interest (see my original post above). There wasn't anything beyond the pale there.

I guess you could sneer about a contingency fee charging racist if you'd like; you'd at least not be uninformed while be unnecessarily defamatory.
posted by dios at 1:26 PM on October 3, 2014 [2 favorites]


By "overly litigious", I took ryanfou's comment to mean that the US is a country where social justice gets hammered out through lawsuits, rather than by already having sensible, government-regulated institutions in place that minimize racial and economic inequality, etc. for everyone, not just those who sue and win.

By "maybe in that context it is reasonable", I read ryanfou as saying that social justice needs to get done via lawsuits if it's not going to get done any other way.
posted by feral_goldfish at 1:27 PM on October 3, 2014 [3 favorites]


"Our legal system is glorious and just," he said in a thread about racial issues.
posted by Drinky Die at 1:29 PM on October 3, 2014 [7 favorites]


Drinky Die: "Our legal system is glorious and just," he said in a thread about racial issues.

That is a terribly uncharitable remix of what dios actually said.
posted by tonycpsu at 1:31 PM on October 3, 2014 [7 favorites]


*shrug* Well, I just came from a Chamber meeting with Frank Luntz and he told me to frame it that way. Sorry, dios. :P
posted by Drinky Die at 1:32 PM on October 3, 2014 [1 favorite]


That's not the common usage of that phrase, feral_goldfish, so I didn't read it that way. There's a well-documented decades-old history of business-protectionist interest groups trying to permeate the public consciousness with the phrases "overly litigious", "frivolous", "jackpost justice", and "lawsuit lottery" and the like as part of their efforts to sell tort reform and limit liability. Most people have absorbed it such an extent they don't even question it or know where they got that understanding from.
posted by dios at 1:33 PM on October 3, 2014 [5 favorites]


it's my understanding that other countries have a lot less lawyers and legal actions than the u s does - whether that makes us overly litigious or them insufficiently litigious is a matter for debate, but there is a difference isn't there?
posted by pyramid termite at 1:38 PM on October 3, 2014 [5 favorites]


"Our legal system is glorious and just," he said in a thread about racial issues.

Setting aside the premise as to whether this thread is "about racial issues", if you care about racial issues, then you should not find the above sentence snarky or ironic. You should cheer our civil justice system, as I was doing. See Brown v. Board, Katzenbach v. McClung, Heart of Alanta v. United States, Pigford, the Black Farmers' litigation, Wilson v. McClure, Shelly v. Kraemer, Loving v. Virginia, Jones v. Maeyer, Bakke, Gutter v. Bollinger... I can go on and on and on. To claim that our civil justice system is somehow to blame or not praise-worthy in a discussion about racial issues is just historically inapposite.
posted by dios at 1:45 PM on October 3, 2014 [9 favorites]


There is generally a lot of outrage on this site when the topic of racial profiling comes up. But there are a lot of commenters here who believe it is absolutely essiential for sperm donor clinics to racially profile every donor. I'm curious, how much black blood is too much? If the child was light tan would that be ok? Or is the curly hair a deal breaker?
posted by night_train at 1:47 PM on October 3, 2014 [4 favorites]


How about they use the sperm they promised they would? Jeez.
posted by small_ruminant at 1:48 PM on October 3, 2014 [4 favorites]


night_train: There is generally a lot of outrage on this site when the topic of racial profiling comes up. But there are a lot of commenters here who believe it is absolutely essiential for sperm donor clinics to racially profile every donor. I'm curious, how much black blood is too much? If the child was light tan would that be ok? Or is the curly hair a deal breaker?

Are you seriously fucking comparing singling out black citizens for citation and arrest to choosing the race of your own child?
posted by tonycpsu at 1:48 PM on October 3, 2014 [9 favorites]


So you spend all that time choosing a donor, and then you get Donor 238 instead of Donor 233. And you're a lesbian couple, already facing a fair amount of discrimination, and your child is African-American. I would love to know the backstory. How did their lawyer choose wrongful birth, have they tried to settle with the clinic, etc.? I tend to think they see a possible large payout that would pay for their child's education, and then some.
posted by theora55 at 1:49 PM on October 3, 2014 [1 favorite]


Saying we have a litigious culture would not be a criticism.

Good thing I didn't say that. Ignoring your mis-characterizations and hyperbole (which is most of your post), I agree with you. Thanks for explaining the benefits of having a legal system.

Thank you, feral_goldfish, for the elucidation. There really was no hidden agenda behind my remark.
posted by ryanfou at 1:53 PM on October 3, 2014


I wish there was a way to separate the race factor from the lawsuit, because the fact is that the clinic messed up regardless of the race of the donor. If the deal is that the recipient gets to choose the donor, you don't use some kind of slipshod procedure where a distracted worker verifies the donor number over the phone while they're doing Lord knows what else at the same time on the other end and reading who know whose sloppy handwriting for all the recipient knows. The race of the donor was just the icing on the cake that made the clinic realize they had to tell the recipient the truth and not try to hide their mistake.
posted by The Underpants Monster at 1:57 PM on October 3, 2014 [9 favorites]


Are you seriously fucking comparing singling out black citizens for citation and arrest to choosing the race of your own child?

I suppose what I'm saying is that if the race of your child is a huge issue for you then you might be a racist. I thiink it is something worth considering.
posted by night_train at 1:57 PM on October 3, 2014 [4 favorites]


I suppose what I'm saying is that if the race of your child is a huge issue for you then you might be a racist. I thiink it is something worth considering.

I'll sit here and wait for you to go out an berate all your white friends who have kids with white partners for being racist then, yes? Or is that magically different somehow?
posted by rtha at 1:59 PM on October 3, 2014 [27 favorites]


The race of the donor was just the icing on the cake that made the clinic realize they had to tell the recipient the truth and not try to hide their mistake.

God knows how many other times they've done this, and I hope some poor person doesn't crop up with a genetic disease a few years down the line because of their negligence.

I suppose what I'm saying is that if the race of your child is a huge issue for you then you might be a racist. I thiink it is something worth considering.

Have you seen all the comments in this thread from mixed-race people talking about how it's fucking hard to be mixed-race and raised by white people?

If the technology existed for these two women to have a child that was biologically both of theirs, they would have done so, and it would have been white. Is that racist?
posted by showbiz_liz at 2:00 PM on October 3, 2014 [13 favorites]


I mean, if Susie and Jill are a lesbian couple and they are both Caucasian, and they want a kid, and they - not unusually - want a kid who resembles them and maybe other people in their families (he has your grampa's chin and my Aunt Mary's eyes!), then they want a donor of their similar racial/ethnic makeup for reasons that can only be racist? Unlike people who procreate without technological assistance?
posted by rtha at 2:02 PM on October 3, 2014 [14 favorites]


rtha: I'll sit here and wait for you to go out an berate all your white friends who have kids with white partners for being racist then, yes? Or is that magically different somehow?

People seem to ascribe sex-free procreation to some weird higher standard i guess? this isn't the only place i've seen this discussion and gotten that vibe. It's like, since they got to choose from a catalog and love/a partner wasn't part of the equation there's a higher duty and expectation on them to make the progressive choice or something since it's basically just pushing a button, and they still get to choose the partner they love or... something.

It's like people ascribe it to being like, a notification popup on your phone going "would you like to have a white baby? this will cause you to benefit from white supremacy OK-CANCEL" and that they just tapped ok and that was all that went into it... or... something.

It completely falls apart when you bring in you know, white people fucking other white people, because everyone does that and that's normal and has nothing to do with racism because duh. People get all weird and defensive when you bring race in to why and who they choose to fuck, i've seen that like, since i was old enough to have conversation about people fucking. Separating babymaking from sex seems to allow them to mount their high horses.
posted by emptythought at 2:04 PM on October 3, 2014 [14 favorites]


berate all your white friends who have kids with white partners [who are their same race] for being racist then, yes?

(I don't think this is only a white issue.)
posted by small_ruminant at 2:04 PM on October 3, 2014 [3 favorites]


And yea, small ruminant, absolutely. i think the white people making more white people part is separate from say, native americans wanting to not be completely erased(which is what i have personal experience with) or other minorities from wanting to stay within their group. It's prejudice vs racism basically.
posted by emptythought at 2:06 PM on October 3, 2014 [1 favorite]


Hunh, because it just sort of sounds like monitoring strangers' wombs to me.
posted by Sticherbeast at 2:07 PM on October 3, 2014 [2 favorites]


emptythought, I don't understand the difference there, actually. For instance, it can be very hard to be mixed race Japanese in some families, even in the US.
posted by small_ruminant at 2:07 PM on October 3, 2014


> I suppose what I'm saying is that if the race of your child is a huge issue for you then you might be a racist. I thiink it is something worth considering.

This bums me out. We've spent most of this thread discussing this very thing — the extent to which it's reasonable to be able to select the race of your own child — and a comment like this feels like it puts us back at square one.

I get how you think that going to a sperm bank is just like going to the Baby Store and picking out a model — really, I do; the process brushes up against some uncomfortable ideas, like whether it's OK to want a child without disabilities — but it's also true that people who reproduce in the conventional way also get to select for all these things, albeit in less overt ways. Tons of people wouldn't ever marry outside their own race for a whole bunch of racist reasons even before we approach the “my kids would be mixed-race” angle, but they get the benefit of the doubt because we honestly have no way of knowing what's in their heads.

I'm not wild about the fact that you're proposing to scrutinize the hidden biases of only those couples that do not enjoy the privilege of conventional reproduction.
posted by savetheclocktower at 2:08 PM on October 3, 2014 [11 favorites]


(I don't think this is only a white issue.)

I agree, but in the context of this specific story, that's the dominant framing.

My parents - my mom white, my dad Hawaiian/Chinese - had long and serious discussions about whether or not to bring a mixed-race kid into the world (it was the early 60s when they started the deciding process). I'm pretty glad they did, and I'm also glad they consciously made it a decision - something to actually discuss and debate and make pro and con lists and all.
posted by rtha at 2:11 PM on October 3, 2014 [7 favorites]


That couple is gaining access to that and other rich traditions and frankly should be thankful for the all the positive aspects of having a baby of mixed white and black heritage.

That couple doesn't gain access to anything. It's not as though they've married into a loving black family and now they get to experience a new culture. They have a mixed-race child with no family of in-laws to help that child navigate the choppy waters of race relations in this country. Hell, given the demographics of the town where they live it doesn't sound like there's any significant black community for them to try to expose her to even if they wanted to.

It's charming that you seem to think that these white lesbians could just present their half-black child at the door of any local black church or whatever, and immediately be warmly welcomed and included without question, but that doesn't sound likely to me. It looks like they've already tried that at the barbershop and it was uncomfortable for everyone. And ultimately, that (a lifetime of working to be accepted in a community that's foreign to them for the sake of their daughter) wasn't what they signed up for when they decided to have a baby with a sperm donor. It's not as though they went to Joe's Discount Random House o' Sperm and figured they'd take their chances.

Honestly, how sad is it that one of my reactions was, "Well, if they have to have a surprise mixed-race baby, at least she wasn't born a boy; they'll have to worry a bit less about her being gunned down randomly in the street! Look on the bright side!"

In conclusion, I HATE EVERYTHING. What a clusterfuck.
posted by town of cats at 2:17 PM on October 3, 2014 [23 favorites]


From the American Fertility Association: Mixed-Up Embryos, Missing Gametes and Other Medical Mishaps
However, where the physician’s negligence involves mistaken use of gametes or embryos, the patient’s right to recover is less clear. In the typical medical malpractice case, the patient has suffered a physical injury. In the mixed-up embryo case, the harm is emotional. While most jurisdictions allow for claims seeking recovery for emotional harm (commonly known as negligent infliction of emotional distress) under some circumstances, many jurisdictions sharply limit that kind of recovery. Often, plaintiffs in those cases must show they were at risk of physical injury themselves, a circumstance that would obviously not apply in the case of lost or damaged reproductive material.

Thus your ability to prevail in a lawsuit for this kind of mistake depends significantly on the controlling state law. In one New York case, for example, a clinic mistakenly implanted an embryo created from gametes of one couple, and intended for their use, into another couple undergoing IVF. The recipient couple ultimately gave birth to twins, one of whom was the child of the other couple. Both couples sued the clinic for the error, and the case was allowed to go forward. By contrast, a Utah court did not allow a couple to recover when the clinic used the wrong donor sperm. The couple had selected donors who resembled the father. The clinic used sperm from a donor who was not approved by the couple and looked quite different from them. The court ruled that the couple failed to show bodily harm resulting from their claimed emotional distress and thus could not recover.

... In addition to the potential for lawsuits, errors can subject physicians and clinics to disciplinary proceedings and other kinds of penalties. Physicians and embryologists must meet the standards of practice and ethical requirements of state licensing boards. Failure to do so can result in various penalties, including loss of the medical license. In 2005, the California Medical Board revoked the license of a San Francisco fertility specialist who implanted the wrong embryo in a patient and failed to inform her of the error for two years.

... Fertility doctors and embryologists must also adhere to rules and regulations promulgated by the Food and Drug Administration (FDA). The FDA has extensive requirements and protocols for screening, testing and handling of embryos and gametes. The FDA periodically inspects labs and can sanction providers who fail to comply with FDA requirements. Likewise, tissue banks, labs and embryologists are subject to state licensing requirements.

Labs may also be accredited by various organizations, such as the College of American Pathologists/American Society for Reproductive Medicine (ASRM) and the Joint Commission on Accreditation of Healthcare Organizations. Professional organizations, such as the Society for Reproductive Technology (SART) and ASRM have also developed comprehensive guidelines for all aspects of the laboratory, including quality control and quality assurance, to minimize the risk of errors in collecting, storing and using gametes and embryos...

... Is there anything you can do, as a patient, to avoid these errors? While the fate of embryos and gametes remains largely outside the patient’s control, you can try to minimize the risk by carefully selecting your fertility clinic, by asking questions and by being vigilant during all phases of treatment. Patients can:

... Measures such as these can help to reduce the chance of an error. But fertility treatment is not a risk-free endeavor.
posted by Emor at 2:18 PM on October 3, 2014 [1 favorite]


When we went through the sperm bank my partner and I (we're lesbians) had to decide whether we'd include Black, Asian, First Nations and Ashkenazi Jews. I'm Polish-Irish-Protestant background, she's French Catholic. We decided yes for Ashkenazi Jews, no for Black, Asian and First Nations donors. It was an interesting conversation, trying to work out why. In the end I figured that our (at that time hypothetical) kids were already going to have to deal with having two moms in a place where the vast majority of kids have hetero parents and adding a visible minority racial background in there would be another challenge. For them and for us. And I live in a big city with a much bigger racial mix than these two women.

If I had fallen in love with a Black woman or an Asian man of course I would have wanted our child to resemble both of us. I would also have had a partner with the background and personal experience to help my child grow up dealing with that type of difference in a racist society. Had we had not been successful with insemination and opted for adoption my partner and I would have been happy to adopt a baby with any racial background. But that didn't happen either.

Choosing sperm from a bank is fucked up. You have to decide on so many things - health history, height (we chucked out anyone under 5'9"), eye colour, weight, hair colour, and area of study (I insisted on someone who had studied in the sciences, to balance out my terrible grades in high school Chem and Physics). The whole process is weird. Of course I'd have smushed by partner's ova with mine and made a magic egg baby if I could have but it doesn't work that way.

I can't judge these women for taking the bank to court - the bank screwed up, big time. Going on CNN on the other hand, that's a crappy decision IMO.
posted by Cuke at 2:29 PM on October 3, 2014 [27 favorites]


small_ruminant: emptythought, I don't understand the difference there, actually. For instance, it can be very hard to be mixed race Japanese in some families, even in the US.

My point was that it's not a choice between white privilege or not, it's just being brown and being accepted within your group vs not. Yes, that is harder, but it's not the same level of difference. The point i was trying to make in my other post was that i understand that it can be harder, and the cultural push there can be within minority groups to stay within the group or be shunned.

Your family shunning you is not systematic racism, was my point.

So basically, i DO think this is a white only issue in this context. It's like the difference between a kitchen fire, and burning your whole house down. In group acceptance of whether you're the right kind of brown person is just not the same as being white or not.
posted by emptythought at 2:34 PM on October 3, 2014


I can only speak for two little boys (my grandsons)but so far life has been kind to them. Maybe that has something to do with our area-military influence, and meeting biracial people here not all that uncommon.

I wish the best for this little girl, and I hope she is raised in a community that will also be loving and kind.
posted by St. Alia of the Bunnies at 2:36 PM on October 3, 2014 [1 favorite]


> If I had fallen in love with a Black woman or an Asian man of course I would have wanted our child to resemble both of us.

Which is the whole point, of course. I assume that the vast majority of those seeking sperm donors want to have a child that looks like them, the custodial parents. They want this because they want the same "privilege" enjoyed by couples who reproduce via conventional means.

It's hard to think of this as a privilege, because it's just something that happens automatically as a result of biology. If it didn't happen automatically — if traits were determined in a more chaotic fashion, or if there were a greater chance of variance along the common racial markers such that two white parents could naturally give birth to a dark-skinned child, and vice-versa — then we'd be living in a completely different world, one in which prejudice would manifest in ways other than skin color. Racism exists for many reasons, but an crucial one is the fact that people who look different are Clearly Not From Around Here, because if they were in our local gene pool they'd look like us.

Which is why night_train's comment weighs on me; to argue that it's "racist" to consider race when choosing a sperm donor is to confuse the symptom with the cause. And I'd expect someone who makes that argument to also, for consistency's sake, argue that it's no big deal when babies are switched at birth — after all, you got pregnant because you wanted a kid, and you ended up with a kid, so what's the big deal? Are you saying this kid that came out of your womb is “better” than the one that didn't?
posted by savetheclocktower at 2:51 PM on October 3, 2014 [10 favorites]


People seem to ascribe sex-free procreation to some weird higher standard i guess?

Not at all. Most people acknowledge the couple's right to choose the sperm donor, and to do so based on race. I certainly do.

By implication, that means that you have the right to sue based on the clinic's failure to supply the promised donor's sperm. But that doesn't mean that part of what should be considered in that failure is the race of the donor. I object to how this couple defines their damages: they didn't get what they paid for during one of the most important and intimate transactions in their lives, so they were clearly harmed. But in describing these harms they have not focused on the mere failure to deliver the requested donor's sperm. They are focused on the specific failure to supply a white donor's sperm.

I agree that there is a very serious bodily integrity and autonomy issue with being impregnated with the wrong sperm. It is a very serious breach. But it should not be ANY MORE of a breach because the sperm one was wrongly inseminated with happened to be a Black man's.

The analogy to other losses of bodily autonomy is clear: medical malpractice is serious, but it's not more serious when the doctor who performed the wrong procedure on you is Black. Rape is deeply, deeply wrong, but it's not MORE wrong when the rapist is Black.

Would it really be less harmful to get the wrong sperm, but still a white person's? Would anyone say "My baby was switched at birth with another baby, but at least she got switched with another white baby"?

I feel like I'm repeating myself, but it seems we're talking past each other a bit so I'm trying to be clear. The race of the child is evidence, certainly, that they got the wrong sperm and that the clinic was in error. But it is not and should not be considered a part of the harm of the clinic's error. For that you can only blame our society.
posted by anotherpanacea at 3:04 PM on October 3, 2014 [20 favorites]


The dishes mentioned are absolutely delicious and part of the black cultural heritage in America, lovingly served among family and friends. That couple is gaining access to that and other rich traditions and frankly should be thankful for the all the positive aspects of having a baby of mixed white and black heritage.

One person's "rich traditions" is another's "cultural stereotypes". How about not saddling the child with race-based dietary expectations just because she's probably more melanin-rich than her maternal relatives. When she's old enough to develop personal preferences in food she may not have a taste for so-called "soul food" at all. I think there are plenty of other non-food-based traditions for her and her mommies to embrace if they want her to be in touch with the Black side of her heritage.
posted by fuse theorem at 3:06 PM on October 3, 2014 [2 favorites]


Even so, Jennifer lives each day with fears, anxieties and uncertainty about her future and Payton's future."

Yes. That is called "parenting." No matter what you do, you don't get to guarantee your child a worry-free, stress-free existence with no challenges, no slings and arrows.

It's a little difficult to hear that the mothers have "no problem" with having a mixed-race child and then talk about getting the child's hair cut in a different neighborhood as if it's a traumatic experience. You want monetary damages for pain and suffering, because your child has forced you to discover that black people notice that you're not comfortable being around black people? Are you kidding me?

(Yes, the sperm-bank fucked up as a business, and should be penalized for their incompetence.)
posted by desuetude at 3:13 PM on October 3, 2014 [1 favorite]


Yeah, I also can't imagine any way whatsoever in which their lives will be made more complicated and difficult by this mistake, because I have chosen self-righteousness over empathy.
posted by showbiz_liz at 3:18 PM on October 3, 2014 [10 favorites]


This case is more proof that our media ecology just can’t talk about law intelligently at all. This couple was plainly, trivially harmed by the sperm bank's negligence, totally independently of the race question -- trying to to turn this into a moral crusade about whether they love their child enough is a total misread of the situation, which from my perspective ties into a much larger history of the media seeking to discredit EVERY high-profile civil lawsuit as a frivolous money grab. They're suing because they have a case and their lawyers are enumerating every harm they've suffered because that's how you sue someone. The outsized focus on the race of the baby is sensationalism.
posted by gerryblog at 3:23 PM on October 3, 2014 [12 favorites]


If I had fallen in love with a Black woman or an Asian man of course I would have wanted our child to resemble both of us.

Why the conflation of these two demographics?
posted by Apocryphon at 3:31 PM on October 3, 2014


What's conflating about offering two options with an "or" between them? (FWIW, my read of that comment is that both Cuke and her partner are Caucasian, and so she was showing by example two racial backgrounds that are different from hers.)
posted by rtha at 3:39 PM on October 3, 2014


One thing people might be overlooking is that this fertility clinic deserves to be sued simply because they should not have been able to fuck this up. Seriously, they had one job, to keep the right spooge with the right file and they couldn't even do that. Shit, it isn't that difficult to design a process that would force someone to get very creative indeed in order to make this mistake on purpose and all but impossible to do by accident. A clinical laboratory deals in tens or hundreds of thousands of times as many specimens over a given period with far more complex handling requirements and they are very good at not messing this up once the specimen is received.
posted by George_Spiggott at 3:42 PM on October 3, 2014 [2 favorites]


Cuke identified herself and her partner as lesbians. Why would she fall in love with an Asian man?
posted by Apocryphon at 3:42 PM on October 3, 2014


It's a counterfactual, Apocryphon. Don't sweat it.
posted by Sticherbeast at 3:45 PM on October 3, 2014 [2 favorites]


to keep the right spooge with the right file
posted by George_Spiggott

Eponysterical!
posted by ryanfou at 3:45 PM on October 3, 2014


> Cuke identified herself and her partner as lesbians. Why would she fall in love with an Asian man?

There isn't a meme face in existence that approximates the equal levels of "what are you getting at" and "what the hell does it even matter" that are running through my head right now.
posted by savetheclocktower at 3:48 PM on October 3, 2014 [17 favorites]


Why would she fall in love with an Asian man?

Because sometimes lesbians fall in love with men, and gay men fall in love with women. The funny thing is this thread was making me think about an ex of mine, who is now married to a man (he's gay, or was, I don't know how he identifies now), and they have adopted two boys from Ethiopia and they all live in upstate New York.
posted by rtha at 3:48 PM on October 3, 2014 [3 favorites]


Oh, and my ex and her husband are both white. I dunno. All kinds of thoughts about identity and parenthood running through my head.
posted by rtha at 3:50 PM on October 3, 2014


I object to how this couple defines their damages ... in describing these harms they have not focused on the mere failure to deliver the requested donor's sperm. They are focused on the specific failure to supply a white donor's sperm.

If the plaintiffs had framed their case to your liking, their odds of success would drop considerably. Emor already quoted the American Fertility Association, describing an unsuccessful precedent:

a Utah court did not allow a couple to recover when the clinic used the wrong donor sperm. The couple had selected donors who resembled the father. The clinic used sperm from a donor who was not approved by the couple and looked quite different from them. The court ruled that the couple failed to show bodily harm resulting from their claimed emotional distress and thus could not recover.
posted by feral_goldfish at 4:01 PM on October 3, 2014 [6 favorites]


Well, we can separate out the things that would make this lawsuit worthy regardless of race, but the truth is that the damages associated with race are probably what made the lawyers eyes turn into little cartoon $ signs (no disrespect, contingency lawyers need to eat too).

I mean, if they'd had a donor switcheroo white baby, they'd be stuck trying to articulate damages (beyond emotional) from just a few things:

1) The non-biological parent doesn't resemble the child when they are out and about or the child needs to be picked up. Where's the damage?

2) If the clinic can't figure out which donor the first baby was, and/or they don't want the same donor, then the damages are probably in line with the mathematical expectation that they'll have a second child, and the first child will have a one in a million need for an organ transplant. Big money times small odds means not much damage.

3) The non-biological mother will have difficulty bonding with the child that doesn't resemble her, and need to do something about it like induced lactation. Hard to articulate, could have happened anyway, is this really enough money to sue over?

When we add race into the equation though in a country where race and class and privilege tend to correlate, and where law is often about protecting privilege and property (ugly yes, this couple's sole fault, no) we wind up having to quantify material harm of a racial difference, and I am not a lawyer, and Dios is right that it's mostly difficult to quantify $$$ impact of the million and one differences in racial privilege, but I think there's one area where it's easy to quantify damages, and it's education. Specifically that the economic benefits of education provided to the child by the parents in terms of lifetime wages are lower for a non-white baby. White women working full time at any education level above high school grad earn $2000-$3000 more per year that Black women, they are forty percent less likely to be unemployed in a given year at the same level of education, etc... I'll make a wild guess because I can't crunch the numbers right now that evening out the mathematical expectation of the same lifetime wages would require roughly twice the spending on education for black women as white. Would courts structure tort remedies so that they can force dollar matching for 529 plan contributions before the child reaches age eighteen, or is it just dollar amounts or nothing?

Personally, before I came to California at age twelve I lived in Pittsburgh PA, and went to a school where there was one black child, and a couple of Jewish kids, and that was pretty much it for diversity. White people weren't all moving there specifically to be racist, but in part because race-class-education were all tied together and if you were keeping up with the Joneses you self sorted into racial clusters to some extent. I suspect successful black people who came into the area felt a constant pressure to move elsewhere. I remember stories about when they first integrated the local schools and parents were waiting with baseball bats, so I'm not saying there wasn't ugly OMG neo-nazi level racism, just that systemic unconscious institutional racism was the even larger problem because the segregation was so bad.

My aunt in Philly adopted my three black cousins (we hung out a lot), and later moved to the 'burbs in Jersey, to a place that is 1% black and has a six figure median income, but is close enough to Trenton for people to make ugly and weird assumptions about what a trio of black kids are doing. I literally cannot understand all the crap that my cousins went through growing up. I mean, I can intellectually process it, but no amount of prejudice I could experience as an adult would let me viscerally feel what they went through no matter how much sympathy I have or how much thought I give to race, ethnicity and cultural heritage. So, I applaud the lesbian couple for at least thinking about how to structure their lives around making their child's life better, even if they make some clumsy mistakes and assumptions of their own in the process. FWIW, I think "not very welcoming" is an ugly construction, but I suspect given the level of racial segregation that you couldn't pay most of the white people in her community any amount of money to go into that part of town. I have no respect for people excusing prejudice with cowardice, but asking someone who's had a lifetime of abuse for her minority status to solely bear the brunt of effectively making herself a minority on another axis and facing more and different discrimination because we're uncomfortable talking about how her communities' racism will impact her seems wrong to me.

At the end of the day, this lawsuit should be about providing their child with what she needs.
posted by BrotherCaine at 4:04 PM on October 3, 2014 [6 favorites]


>They don't have standing to sue.

Yeah, no. Thing is, I was making a joke.
posted by IndigoJones at 4:11 PM on October 3, 2014


Oh, and those numbers about education and lifetime pay came from Education Pays 2013 (pdf).
posted by BrotherCaine at 4:11 PM on October 3, 2014


Tim Misny, the lawyer in this case (yes, this is local-ish) is well known for his tv commercial tagline "I'll make them pay!" -- and owns an estate called Misnyland. Whoever said working-on-contingency lawyer: ding ding ding ding!
posted by bitter-girl.com at 4:18 PM on October 3, 2014 [2 favorites]


Also, FWIW, I dislike the idea that lost wages should somehow be the sole determinant of someone's worth. It effectively makes the lives of the privileged worth more than the disadvantaged and creates perverse incentives to increase discrimination, racism and social gaps.
posted by BrotherCaine at 4:20 PM on October 3, 2014


Sometimes a point of inquiry is just a point of inquiry.
posted by Apocryphon at 4:28 PM on October 3, 2014


> Cuke identified herself and her partner as lesbians. Why would she fall in love with an Asian man?

It was hypothetical. I haven't dated a man for 20+ years and I'm happily married (10+ years) with every intention of staying with my wife until we are old and grey, so I usually use "lesbian" as an identifier. Like any label it can be a useful shorthand. In a longer more in-depth conversation I'd go with polysexual.
posted by Cuke at 4:30 PM on October 3, 2014 [7 favorites]


BrotherCaine: Also, FWIW, I dislike the idea that lost wages should somehow be the sole determinant of someone's worth. It effectively makes the lives of the privileged worth more than the disadvantaged and creates perverse incentives to increase discrimination, racism and social gaps.

I don't like it either, but do you have a better concept? Reparations of some sort?

I couldn't think of one i was more comfortable with, but it's that old "a problem without a solution is just another problem" kind of chestnut. There's no neat and tidy way for the court to handle this.

There's also the point that feral_goldfish brought up, they're trying this throw-pasta-at-the-wall-and-see-what-sticks approach with the race thing because cases that didn't include that have failed.

It's sort of a hate the game, not the player thing. If you believe they're entitled to some kind of compensation, but don't like what they had to claim or the hoops they had to jump through to try and get it, then that's not really on them... unless you think that they should find having to do that so gross as to just back off.
posted by emptythought at 4:33 PM on October 3, 2014 [5 favorites]


hate the game, not the player
This.
posted by feral_goldfish at 4:38 PM on October 3, 2014 [1 favorite]


Most people acknowledge the couple's right to choose the sperm donor, and to do so based on race. I certainly do.

Wasn't there an Ask Mefi in the last year in which a poster got scolded for praising a partner as attractive? If I recall correctly, that was considered quite an offense, as one should be impartial to patriarchal society's norms. (Not being sarcastic.)

I'm asking because—as phunniemee indicated in comment #2—there's a lot to think about here. Especially the dividing line between individual personal preference and exclusion, whether through racism or sexism or whatever. And whether one is justified in being more selective in the appearance of one's partner (whom one needs to be attracted to) or one's child (whom one just needs to love but also shepherd through this world).
posted by Mapes at 4:50 PM on October 3, 2014


The race of the child is evidence, certainly, that they got the wrong sperm and that the clinic was in error. But it is not and should not be considered a part of the harm of the clinic's error. For that you can only blame our society.

This.

The absolutely crazy thing here in this situation, to me, is how they are equating raising a child who is a minority with economic and emotional distress.

(Full disclosure. I am a white mom and one of my kids is black. And I think that the sperm bank was negligent and should be forced to pay for their negligence, because if you say I get to pick the sperm I'm putting in my uterus if I pay you? Then you better have some failsafe procedures to make sure the sperm I order is the sperm I get. This ain't Dairy Queen.)

At the same time.

Would this case be the same if the child had bright red hair and green eyes, and both moms had blonde hair and blue eyes? Or if their daughter had white, curly blonde hair and blue eyes, while they both had black stick-straight hair, black eyebrows, and dark brown eyes? This is not about the child looking like them or not looking like them. This is about race.

It isn't the fact that this couple are suing the sperm bank over the error...I completely understand that. It's HOW they brought race into it. Have you read the document?

Cramblett was raised around people with stereotypical attitudes about nonwhites, the lawsuit states, and did not know African-Americans until she attended college at the University of Akron…

She fears that her “all white and unconsciously insensitive family,” which has never been able to fully embrace Jennifer’s homosexuality, could have a negative effect on her daughter, according to the lawsuit.

“Though compelled to repress her individuality amongst family members, Payton’s differences are irrepressible, and Jennifer does not want Payton to feel stigmatized or unrecognized due simply to the circumstances of her birth,” the lawsuit states. “Jennifer’s stress and anxiety intensify when she envisions Payton entering an all-white school.”


24. As just one example, getting a young daughter’s hair cut is not particularly stressful for most mothers, but to Jennifer it is not a routine matter, because Payton has hair typical of an African American girl. To get a decent cut, Jennifer must travel to a black neighborhood, far from where she lives, where she is obviously different in appearance, and not overtly welcome.


I'm kind of with Elie Mystel who just wrote in AboveTheLaw:

I hope they pay. Again, I’m inclined to think that simply mixing up donors would be enough to win this lawsuit; but since she brought race into it, I want to know what, precisely, we think it’s worth to go from being a parent of a white kid to being a parent of a non-white kid. How much economic loss are we willing to ring up for that? TELL ME. Then pay her. Then open up the f**king treasury and pay ever black mother the same goddamn price.

And huge kudos to Denene Miller who penned these comments that summed up my thoughts about this whole bro-ha-ha in relation to the inconvenience and economic/emotional distress that the race of this child is creating in relation to the birth mom's relatives and hometown:

...in 2014, Cartlett was apparently A-OK with living in a homogenous white world where, no doubt, the “N” word and stereotypes of Black people are on their friends’, neighbors’ and families’ lips like likka. I can’t help but to wonder, too, if she participated in the rampant prejudice against and the willful ignorance of the plights of humans, races and cultures that do not look like her own. This kind of environment would have been okay had her daughter been born white?

posted by jeanmari at 5:31 PM on October 3, 2014 [14 favorites]


I don't really know why it's extra-racist when a couple has to choose to bear a child of the same race as they are, vs. straight fertile people who can do it thoughtlessly.

Straight fertile people presumably encountered humans until they found one they would like to have a baby with. I hope you can agree that there is some component there that is not based on appearance. The resulting appearance of the child is largely predetermined by the existing appearance of the parents. The phenotypical uniformity of the parents (or lack thereof) could be due to chance, to institutional racism, to personal racism, or to other factors.

However, to reject a donor's sperm solely because of the skin color of the potential child (who hasn't even manifested a personality), on the other hand, would seem to be a pretty straightforward example of racism (if not "extra-racism")*.

I am surprised at the number of people in this thread who are resistant to the idea that in assembling a family, it is inappropriate to say, "I won't accept blacks."

*I could be misunderstanding things badly, of course.
posted by Mapes at 5:33 PM on October 3, 2014 [1 favorite]


Would an analogous situation be made to parents adopting children, and not receiving the child they had applied for?
posted by Apocryphon at 5:35 PM on October 3, 2014


I don't like it either, but do you have a better concept? Reparations of some sort?

Come up with a couple legislated standards for worth of a human life, limb, mobility, standardized amount of money per hour for people to compensate them for time spent per day dealing with injuries/disease/inconvenience. Make it apply the same for everyone with maybe a regional bump for COLA. I'm sure there's problems with that idea too, but it seems like pros would outweigh the cons (at least at first glance, I'm not advocating sudden sweeping social change, that doesn't end well).
posted by BrotherCaine at 5:35 PM on October 3, 2014


Is this particular lesbian couple personally responsible for fighting racism in ways that other prospective parents and members of society at large are not?

Well.. they are now.
posted by yonega at 5:41 PM on October 3, 2014 [4 favorites]


The parents lives will be more difficult because of this mix-up. Now, however, by suing and asking for damages for the racial mix-up, you've made the child's life more difficult. I am black and was raised by a white mother, but it always felt that we were in it together. This little girl will know exactly what her mother feels about raising a child of the "wrong" race. She will know that they aren't a team, but that her parents got stuck with her from what they considered a terrible and major mistake for which they tried to sue to get restitution for this mistake.
posted by bperk at 6:31 PM on October 3, 2014 [13 favorites]


I am surprised at the number of people in this thread who are resistant to the idea that in assembling a family, it is inappropriate to say, "I won't accept blacks."

If a black woman were only willing to accept black sperm donors, would you find that inappropriate also?
posted by jingzuo at 7:34 PM on October 3, 2014 [7 favorites]


I want to know what, precisely, we think it’s worth to go from being a parent of a white kid to being a parent of a non-white kid. How much economic loss are we willing to ring up for that? TELL ME. Then pay her. Then open up the f**king treasury and pay ever black mother the same goddamn price.

This. So much this.
posted by feckless fecal fear mongering at 7:42 PM on October 3, 2014 [5 favorites]


From my understanding of the article the process was:
Okay. We really need to move to a different town for the sake of our child.
We probably wouldn't have to do this if the clinic hadn't fucked up.
So maybe we can get the clinic to cover our moving costs.
Then lawyers. And media. And everyone tries to make it all sound terrible.

Also, in my experience with IVF where on,y one partner is contributing genetic material, one of the major considerations that clinics and therapists and so on suggest is that the partner who doesn't contribute genetically might want to be the main person responsible for picking the donor, so that they do feel like they made an equal contribution to the child's genes, even though it's through selection rather than nature. Some people even suggest you might want to pick a donor that looks as much like the non-genetic parent as possible, so that you feel like your child might resemble both of you, and thus help you feel more like the baby is truly equally both of yours. It sounds from the article that this is exactly what their thought process was, and the clinic robbed them of this, quite apart from the fact that the donor was a different race - it was not the donor they chose for reasons that were important to them.

I'm sure there are legal precedents for compensation paid to parents whose babies were accidentally swapped at birth by the hospital, and I think it's kind of a similar situation.
posted by lollusc at 7:43 PM on October 3, 2014 [5 favorites]


Ta-Nehisi Coates has been tweeting about this case tonight, starting with a really interesting thought based on his recent work:
Funny how white woman who ended with a black kid is basically suing for reparations.
posted by Lemurrhea at 8:09 PM on October 3, 2014 [9 favorites]


I love this. It's wonderfully absurd on so many levels. If only George Carlin were alive. He'd have a field day. Talk about white privilege! What an awful couple.
posted by ReeMonster at 8:18 PM on October 3, 2014


I'm not the first person here to wonder this, but I can't stop thinking about how many other screw-ups (so to speak) sperm banks make every day, except that when the race is correct no one notices.
posted by Dip Flash at 8:50 PM on October 3, 2014 [2 favorites]


I am surprised at the number of people in this thread who are resistant to the idea that in assembling a family, it is inappropriate to say, "I won't accept blacks."

I'm surprised that you presume to know what is appropriate for other people who are attempting to "assemble" a family. Their criteria for selecting a donor were based on what they thought best for them, not what you think is appropriate.
posted by MikeMc at 9:06 PM on October 3, 2014 [4 favorites]


Lemurrhea: "Ta-Nehisi Coates has been tweeting about this case tonight, starting with a really interesting thought based on his recent work:
Funny how white woman who ended with a black kid is basically suing for reparations.
"

I just finished Ta-Nehisi Coates' The Case for Reparations on the bus home today, and that's exactly where my mind went as well.

I'm having a hard time pinning anything on these parents. Okay, they should speak out about racial inequality because it's the right thing, not because it's in their self interest. But at the end of the day, I'm glad they're suing and I hope they win.
posted by yaymukund at 9:08 PM on October 3, 2014 [1 favorite]


"Wrongful birth" is a stain that, once put upon me by my parents, I would carry to my grave.
posted by SPrintF at 11:28 PM on October 3, 2014 [2 favorites]


idk- I'm one of a zillion IUD babies and haven't felt less loved because of it.
posted by small_ruminant at 11:53 PM on October 3, 2014 [1 favorite]


What is the distinction between "I want a [race] child" and "I want a [race] partner/neighbor/coworker/friend"? The reasons "my choice is nobody's business" or "society made me do it" would not seem to quite cut it for the latter, why would they for the former?
posted by cheburashka at 12:39 AM on October 4, 2014 [1 favorite]


I am really uncomfortable with how many people feel okay with judging a lesbian couple already facing barriers for not wanting things to be yet harder for them.

Like, they love each other and want to have babies, yay! But technology isn't there yet, so they have to pick donor sperm that sort of kind of looks like the other mother. And they want that because love, but also because maybe they just want to be normal. They don't want to answer a single more intrusive question than they have to. And they are going to, now. A lot. And they are going to have to either watch people be shitty to their daughter, or move back away from family again.

These people are not monsters.
posted by corb at 1:06 AM on October 4, 2014 [4 favorites]


What is the distinction between "I want a [race] child" and "I want a [race] partner/neighbor/coworker/friend"? The reasons "my choice is nobody's business" or "society made me do it" would not seem to quite cut it for the latter, why would they for the former?

Whoa, you're conflating some very different situations in your second example there.

First, "I want a [race] partner/friend and my choice is nobody's business" cuts it just fine. My personal associations are my choice. Period. Whether you like or agree with them or not. You may feel that I'm limiting my options in life, but it's my life and my choice.

"I want a [race] coworker/neighbor," on the other hand, is totally inappropriate because it limits someone else's options in life because of their race. I do not get to choose where other people live and work.

Wanting a sperm donor of a particular race is an utterly unrelated situation. There is no baby yet. Nobody is being hurt by this choice.
posted by jingzuo at 1:32 AM on October 4, 2014 [8 favorites]


jeanmari: ...in 2014, Cartlett was apparently A-OK with living in a homogenous white world where, no doubt, the “N” word and stereotypes of Black people are on their friends’, neighbors’ and families’ lips like likka. I can’t help but to wonder, too, if she participated in the rampant prejudice against and the willful ignorance of the plights of humans, races and cultures that do not look like her own. This kind of environment would have been okay had her daughter been born white?

Well, even skipping over the "wanting a baby that looks like you and your partner" thing, i think this is a pretty tall order and a pretty shitty way to frame this.

Yea, they might be in a small town surrounded by a bunch of racist assholes... but that's where their family and support system is. I know people who have parents who are in families like this, where they're living somewhere rural and not 100% tolerant with the same sex partner, with a family that's shakily ok with it. But it's still their family, and all their friends and job and everything is there too.

"If it's not somewhere you could raise your mixed kid, then it wasn't a good place to be raising a white kid and you should be moving anyways and breaking away from all that" is like, some pretty heavy armchair quarterbacking. It's a huge expectation and kind of really idealistic to expect someone to just walk away from their entire network like that.

God, i feel like i'm in bizarroland that i'm having to make a point about why someone would want to, and be entrenched in staying around their family, support system, and everything they know.

And as above, what about i don't know, every other white family where some place like this is their home and everything they know? Should they just pack up and move somewhere more progressive too?
posted by emptythought at 2:52 AM on October 4, 2014 [16 favorites]


All I'm going to say is that the hair salon thing confuses the shit out of me.

One of my aunts "dressed hair" (as she puts it) for fifty years. Yes, back in the day it was pretty much a rule from Jesus that no black person ever went to a hair salon that wasn't owned by a black person and staffed with black people. To go anywhere else was to risk getting your hair totally fubar-ed while paying dearly for the privilege.

But according to my aunt, back in the '80s someone at a beauty school somewhere apparently did the math, and realized that black women spend an unholy amount of money on their hair. Suddenly all of the beauty schools were pushing "universal" hair styling--teaching the students to style the hair of anyone from any ethnic background. When I moved out on my own after college and was searching for a stylist, my aunt told me that I should be able to walk into any salon in town and be served appropriately. "Them white girls know what they're doing, now," she said. "They didn't know before, but they finally figured it out."

So I have a hard time believing that the women in the linked articles couldn't find someone in their preferred neighborhoods who had the skill and the training to do their child's hair. Those stylists might not have been willing, mind you, but the skill level should've been there.
posted by magstheaxe at 3:06 AM on October 4, 2014 [4 favorites]


So I have a hard time believing that the women in the linked articles couldn't find someone in their preferred neighborhoods who had the skill and the training to do their child's hair. Those stylists might not have been willing, mind you, but the skill level should've been there.

I went to grad school in a college town. There was one stylist in town (not one salon, it was one stylist who worked part time) who did an ok job with black women's hair, and if a person wanted their hair done well they drove almost two hours in each direction to the nearest city with a large enough black population to have good, specialist salons (and spent serious money on it, too -- work of that quality does not come cheap).
posted by Dip Flash at 6:11 AM on October 4, 2014 [10 favorites]


So I have a hard time believing that the women in the linked articles couldn't find someone in their preferred neighborhoods who had the skill and the training to do their child's hair. Those stylists might not have been willing, mind you, but the skill level should've been there.

In my experience that's categorically untrue.
posted by girlmightlive at 6:16 AM on October 4, 2014 [3 favorites]


There are real hardships here and quantifying them is what we do in America. Let's get on it. If this happened to me I would not have to move since I live where the child's appearance wouldn't matter. But if I did I would want to GTFO, and it looks like std. of living costs tend to rise with ideal conditions. This would be done out of love for my kid.

I'll go on a limb and state that every one of us who has contemplated moving into a given area for the quality of schools, etc. has done the same exact thing.

If the reasons to relocate are manifold and would not exist but for a traceable error, then list them and ring em up.
posted by drowsy at 6:28 AM on October 4, 2014 [2 favorites]


Ta-Nehesi Coates, via Lemurrhea:

She is not objecting to, say, dark skin. She is objecting to what it means to raise a dark-skinned child in America.
posted by feral_goldfish at 7:22 AM on October 4, 2014


God, i feel like i'm in bizarroland that i'm having to make a point about why someone would want to, and be entrenched in staying around their family, support system, and everything they know.

Actually I've noticed this sort of discourse a lot on Metafilter -- not saying it's something wrong with Metafilter, just a demographic thing. I guess people who use it tend to be unconscious of their privileged mobility, e.g. the kind of training where they're employable anywhere, and can find a job before they relocate, with any preliminary travel paid by prospective employer); deep pockets for first and last month's rent plus moving expenses (or employer who pays); no keen background awareness that they might need to borrow a car to keep from losing their job, or stash the kids with grandparents rather than a homeless shelter; no need to stay in a particular network of business relationships, where your buddies give you a good deal because you all go way back and owe each other favors.

This could be seen as a purely economic strategy (not available to all): vesting your capital in your individual training and bank account, rather than your social network.

But it also has moral, aesthetic, cultural dimensions. Not everyone just figures they'll make new friends, as if friends were interchangeable units. Some people's memories are vested in places, in buildings and land, such that losing landscapes feels like losing their moral grounding. Some people identify primarily through their extended families or neighborhoods or religions or yeah, ethnicity, including immigrant communities and (literal) tribes.

So this discourse often reflects an unconsciously privileged class position. And it's sometimes ironic how it pops up in disgusted response to elections or judicial decisions ('Why doesn't everyone just leave [Red State]?') that mostly hurt people who lack this privilege.
posted by feral_goldfish at 8:13 AM on October 4, 2014 [18 favorites]


Part of equal rights also means equal responsibility for how you choose to interact with others. It's not surprising that racist parents would want a racially pure child. What's surprising is the strange objection to the idea that lesbians can be racists and be all-around awful people, just like anyone else on the planet. The amount of excuse-making and rationalization is interesting, as an Internet phenomenon.
posted by a lungful of dragon at 8:14 AM on October 4, 2014 [2 favorites]


the strange objection to the idea that lesbians can be racists and be all-around awful people

No one has made this particular objection.
posted by feral_goldfish at 8:19 AM on October 4, 2014 [4 favorites]


What is the distinction between "I want a [race] child" and "I want a [race] partner/neighbor/coworker/friend"? The reasons "my choice is nobody's business" or "society made me do it" would not seem to quite cut it for the latter, why would they for the former?

First of all, there are two totally different things there. Wanting e.g. only white coworkers is obviously disgusting.

Second, because when and how someone chooses to reproduce is between them, their partner(s), and any medical staff who need to be involved. And nobody else.
posted by feckless fecal fear mongering at 8:20 AM on October 4, 2014


Look, children are born all the time who are unexpectedly marginalized in a way their parents are not. It's not common for a whilte parent to give birth to a child of color unexpectely, but hearing parents give birth to Deaf babies, sex-typical parents give birth to intersex babies, etc. every day.

Each of these families has to deal with social stigmas and challenges they were privileged to think little about before. It's totally normal for the parents in such cases to go through a period of shock and mourning, much as we'd like to imagine otherwise. I don't think anyone should be judged for not immediately jumping up and down and saying, "Oh yay, my child is unexpectedly Deaf/intersex/of color, we're going to grow and learn as a family so much!"

What I do think, as someone born intersex, and the parent of a kid with a disability, is that it is vital for parents to get through that period of shock and mourning and move on so they can do the thing all parents should do: focus on their child. Their child, being marginalized, will especially need to know they have their parents' unconditional love. That their parents love them just as they are--not reluctantly, not despite their marginalized status.

So: suing the sperm bank for breach of warranty makes sense to me, because they screwed up.

But I have never seen a "wrongful birth" suit I thought was a good idea. These suits by their nature frame the child involved as defective, a horrible disappointment, a burden on their families. And whether the parents actually feel that way or are just letting their lawyers describe them like that, their child is going to find out about the lawsuit, and that could be devastating for them. Whatever their parents' say about loving them just as they are will be undermined by knowing they told the world that their child's birth was a negative thing.

To say the wrongful birth suit is a terrible idea is not the same thing as saying "parents who have an unexpectedly marginalized child face face no stigma or bigotry." It's just saying this is the wrong way to address it, because of the message it sends that they blame their child and not society for making their lives harder.
posted by DrMew at 8:31 AM on October 4, 2014 [9 favorites]


[A few comments removed; sarcastic helping is not actually helping, thread doesn't need to get more antagonistic.]
posted by cortex (staff) at 10:36 AM on October 4, 2014


I have to wonder what the citizens of Uniontown feel about this whole situation. One major cause for this suit is that because Payton is mixed-race, they feel that the bigoted environment would be tougher for her to be raised in. But why would the town be more racially intolerant than homophobic? If Cramblett and her partner have been living in the town already, would having a mixed-race child really add more fuel to prejudicial fire? This is not even a rhetorical question- it's a valid question as part of the lawsuit.

Ohio Town Trustee Says Biracial Sperm-Mix-Up Baby Welcome

"There's no reason anyone would act that way to a 2-year-old," said John Arnold, a trustee for Lake Township, which encompasses the child's hometown of Uniontown. "I could not fathom it."

Census data shows Uniontown, a bedroom community, is 98 percent white, but Arnold said the community welcomes diversity. "We have a large Mennonite community and a lot of the members have adopted African-American children and babies from all over the world and those kids have been treated fine," he said. "They obviously have a beautiful, healthy 2-year-old," he said of Cramblett and her partner. "I hope that their perception of how they might be treated in Uniontown is not the reality."

posted by Apocryphon at 12:23 PM on October 4, 2014


See, that just sounds clueless to me. I'm surprised he didn't just say he didn't notice color.
posted by small_ruminant at 1:28 PM on October 4, 2014 [1 favorite]


Apocryphon: But why would the town be more racially intolerant than homophobic?

Why would it have to be? The daughter isn't lesbian (or isn't old enough to have a handle on her sexual orientation, at least) but she is mixed race, so even when she's not around her parents and nobody's aware that she has two mommies, she's going to face bigotry for being mixed race. Then, when the family is together, they'll face additional bigotry for being both a family with two mothers, a family with a darker-skinned daughter, *and* a family that's not the same ethnicity. In other words, even some black families may look at them, independent of the sexual orientation of the parents, and wonder (erroneously) why they chose to adopt a black girl.

We're talking like four dimensions of intersectional bigotry here, so the idea that there might be some racists who aren't homophobes (or vice versa) is irrelevant even if it were true.
posted by tonycpsu at 1:34 PM on October 4, 2014 [2 favorites]


But why would the town be more racially intolerant than homophobic?

Because racism and homophobia are two different things that manifest differently. Because socially, historically, and culturally, lesbians are seen (or not seen) differently than black people in majority white environments. Because it's actually not that impossible to "disappear" as a lesbian couple (it's happened to me!) but harder when your difference is visible in your skin color and hair type. Because adults treat adults differently from how kids treat kids.

Because people are not logical actors. Because a lesbian couple that hasn't had their cars keyed or gotten hate messages spray-painted on their garage doesn't mean that their black daughter won't be subject to outright racism or subtle othering.

Man, that is a weird question.
posted by rtha at 1:38 PM on October 4, 2014 [4 favorites]


I would love to journey to the alternate universe where this lawsuit was brought by a socially conservative Christian minister and his wife and reload this thread. I'm not saying the nuances identified here aren't both real and near impossible for random folks to untangle to the point where it's best we butt out, but I do sense that because we are people who identify the parents as members of a group we ally with in this particular case, it's making appreciating the nuance a whole lot easier for us.
posted by Drinky Die at 1:51 PM on October 4, 2014 [7 favorites]


But why would the town be more racially intolerant than homophobic?

It might be just as homophobic, but they'll put up with that treatment because they are adults and made a choice. Meanwhile, they aren't willing to make the same choice to put up with bigotry focused on their child.
posted by BrotherCaine at 3:36 PM on October 4, 2014 [5 favorites]


I am surprised at the number of people in this thread who are resistant to the idea that in assembling a family, it is inappropriate to say, "I won't accept blacks."

I am surprised at the number of people in this thread who seem to be suggesting that the only way a woman going through IVF can prove her non-racist bona fides is to essentially say, "Just go ahead and throw anyone's sperm into me, don't care whose it is".
posted by The Gooch at 4:08 PM on October 4, 2014 [11 favorites]


"Black is okay" is literally the same exact thing as "I have no preferences of any kind at all."
posted by Drinky Die at 4:36 PM on October 4, 2014


Because it's actually not that impossible to "disappear" as a lesbian couple (it's happened to me!) but harder when your difference is visible in your skin color and hair type.

It just seems really incredibly unfortunate that one of the justifications for the case is that, "Well if their daughter was Caucasian, then they could pass as non-lesbians, and everything would be easier." But I suppose that's how it is. And if Cramblett believes her therapists' advice about leaving Uniontown, she's entitled to that decision.

Because people are not logical actors.

That is true, but the whole premise of this lawsuit is to quantify the harm (or potential harm) caused by the sperm bank's mistake, and figure out how much the plaintiffs are owed. So wouldn't we have to establish that the people of her town are racist as well as homophobic?

And even beyond the issue of wrongful birth, have there been court cases involving the idea of "these people are bigots, so potentially there will be harm", as opposed to, "these people are bigots and they harmed me"? Preemptively labeling people as bigots, regardless of how easy or obvious it might be, seems problematic as well, at least in a legal context.
posted by Apocryphon at 4:37 PM on October 4, 2014


I don't think they are bigots, I just worry about how their daughter will feel when she is old enough to understand all this.

I also have the privilege of living in an area which is relatively welcoming to people of mixed race (yes, there is racism here, but there are also lots of mixed race families and mixed race children in the area as well, and so far my own grandkids haven't run into anything I would want to knock some sense into somebody over. Yet...)

I don't know how progressive their area might be or not be. But if it is mostly white that child will be "othered" even if people have the best of intentions. And not everyone will have the best of intentions.

The truth is I suspect this is the angle the lawyer is presenting so they can get as much as possible in the court case. I am sure they do have some discomfort with the situation, but I would hazard a guess by the time Daughter is six or seven they will be handling life with her just fine.
posted by St. Alia of the Bunnies at 4:55 PM on October 4, 2014 [1 favorite]


(and fwiw I know a white pastor and his white wife whose first adopted child is mixed race, and he is thriving. But then, they chose him.)
posted by St. Alia of the Bunnies at 4:57 PM on October 4, 2014


"Black is okay" is literally the same exact thing as "I have no preferences of any kind at all."

People have an absolute, inalienable right to choose what sperm goes inside of them. You do not get a vote. They wanted their kid to look like them, as much as was reasonably possible. Perhaps you think they are racist. Good for you. Others' wombs are none of your political concern.

The parents love the kid, but the sperm bank screwed up. They had wanted their two children to eventually share the same biological father. However, since the sperm bank has screwed up, in order to achieve that goal. they would have to once again use sperm that they did not want. And, again, people have an absolute, inalienable right to choose what sperm goes inside of them. So, the sperm bank's error will carry forward, forever, no matter what their next step is.

Wrongful birth suits are never not awkward. All in all, the sperm bank has put the parents between a rock and a hard place. I don't know if I would go forward with this suit myself, if I was a part of this family. But, hey, I'm not in that family, so we're back to other people not having a vote again.
posted by Sticherbeast at 4:58 PM on October 4, 2014 [17 favorites]


I don't think they are bigots, I just worry about how their daughter will feel when she is old enough to understand all this.

No, I meant the plaintiffs are essentially labeling the townspeople as bigots in their case- they're saying Uniontown is too close-minded an environment to raise their child in. Which very well may be true, but can the law take it as a given? Legally, how does a court process the idea of, "okay, that place is full of intolerant people, which will likely impact your quality of life, therefore you should be awarded the damages in order to move away from there"?

Granted, Cramblett mentions her family distancing themselves from her, so it's not as if her allegations are without basis. But the potential difficulties of raising a mixed-race child haven't completely appeared yet. So the case partly rests on potential damage. Can the law weigh in on the tolerance levels of people before they've acted yet? Is that even possible?
posted by Apocryphon at 5:07 PM on October 4, 2014


"Black is okay" is literally the same exact thing as "I have no preferences of any kind at all."

People have an absolute, inalienable right to choose what sperm goes inside of them. You do not get a vote.


Yeah, thanks for the lecture. I don't need a vote on the outcome to say I think, "No blacks allowed." is a bad policy.
posted by Drinky Die at 5:20 PM on October 4, 2014 [1 favorite]


Drinky Die: I would love to journey to the alternate universe where this lawsuit was brought by a socially conservative Christian minister and his wife and reload this thread. I'm not saying the nuances identified here aren't both real and near impossible for random folks to untangle to the point where it's best we butt out, but I do sense that because we are people who identify the parents as members of a group we ally with in this particular case, it's making appreciating the nuance a whole lot easier for us.

I think there's more to this than what you're essentially heavily implying, which is that we're only giving them the benefit of the doubt because they're perceived to be on "our team" or something.

It's not that easy of a swap-out, because there's additional things that make this sort of IVF/sperm bank stuff different if it's a same sex couple, because their only options are either that or just pick a guy to be the "donor". Even if someone in that hypothetical minister couple was infertile, it still doesn't carry the same cultural baggage as reproducing-while-lesbian-couple.

I know you said you get that the nuances are there, and that it's hard to untangle them because that's how it is... but no matter how much i stare at this comment i can't read it in a way that isn't glib and snarky, and something to the effect of "people are giving them way too much rope on this one".

I feel like because it's so hard to disentangle, that this thought experiment is pointless in the way that playing devils advocate usually is. Yea, that thread would probably be a totally unserviced port-o-john of shitting on them, but that wouldn't make any kind of real deep point because it would be a completely different situation.
posted by emptythought at 5:32 PM on October 4, 2014 [1 favorite]


I think they deserve the benefit of the doubt for the reasons given. What I think is that this benefit would never be given to the sort of people Metafilter dislikes.
posted by Drinky Die at 5:41 PM on October 4, 2014 [1 favorite]


But then why would you want to travel to that alternate universe? I'd rather stay here, where this thread HAS already happened. That way when the minister couple show up, their reception should be made a lot more interesting thanks to whatever nuances have already been untangled.
posted by feral_goldfish at 5:54 PM on October 4, 2014


Oh, if they showed up even after this thread it's not going to shield them. They are out of place here, they just don't have the context to understand our culture. They are better off if they start out on /r/aww on Reddit.
posted by Drinky Die at 6:02 PM on October 4, 2014


What I think is that this benefit would never be given to the sort of people Metafilter dislikes.

Maybe we can not have what would no doubt be a difficult conversation about a total hypothetical (in a thread where it doesn't even belong) when we are already having a difficult (but going pretty good, I think) conversation about an actual situation that really exists?
posted by rtha at 6:03 PM on October 4, 2014 [7 favorites]


It's not actually hypothetical that white people want white babies when they go to sperm banks or adoption centers, but it is super cute that we can spin some drama out of this. Let me know what I can do to help the storyline along.
posted by Drinky Die at 6:10 PM on October 4, 2014 [1 favorite]


I'm sorry, this is awful, flagging for deletion, sorry all.
posted by Drinky Die at 6:13 PM on October 4, 2014


"Black is okay" is literally the same exact thing as "I have no preferences of any kind at all."

The thing is "black is okay, just give me whoever" is not actually an option you can choose. You can't just ask a sperm bank for a random vial of sperm. They will not sell it to you. At least at the bank I used (which is not the bank this couple used), the sales agents were required to read a detailed physical description of the donor (including, yes, race) to the purchaser over the phone before finalizing the sale, to make sure it is actually the correct donor they chose-- which is done *precisely* to avoid situations like what happened to this couple. You have to choose a specific donor. That donor has a race listed on their profile. This is how it works.

Fertility clinics won't let you mix samples from multiple anonymous donors, either. In some circumstances (such as a gay male couple wanting to have a child, but not wanting to know which one is the genetic father), they will do IVF using sperm from 2 men-- but I know of no clinic that will let you use multiple anonymous donors at the same time in an effort to be non-racist.

So you have to choose a single donor. And that person will have a race (or multiple races, as my donor did). And-- here's the thing that people are missing when they criticize this couple for being "racist" in wanting a donor of their own race-- you will be criticized for being racist no matter what you choose. I chose a donor who is not from my racial background-- so I must hate my own kind, right?

I think that this couple could have brought this lawsuit without bringing up race, and I do think they deserve significant financial compensation for the sperm bank's massive screw up. But I also think that choosing a sperm donor is an incredibly personal choice based on many factors. And I'm completely appalled by the numerous statements in this thread suggesting that women should literally agree to be inseminated by any random man on the street, or else they are horribly racist.
posted by rhymeswithcheery at 6:14 PM on October 4, 2014 [11 favorites]


Maybe we can not have what would no doubt be a difficult conversation about a total hypothetical

It doesn't seem like much of a hypothetical to me, from what I have read so far. Just another voice of disagreement.
posted by a lungful of dragon at 6:17 PM on October 4, 2014


Jesus Fucking Christ, it is not "no blacks allowed" when a lesbian lady chooses sperm that looks like her wife in order to make a baby. If her wife was black, I'm sure she would have chosen a black donor.

Are people really unaware that there's all kinds of hard shit around ladies having babies together and "Ha ha whose is it REALLY?" and just awful all the live long day?
posted by corb at 6:43 PM on October 4, 2014 [16 favorites]


I don't need a vote on the outcome to say I think, "No blacks allowed." is a bad policy.

I don't think it is fair to hold couples who have children through IVF, particularly a couple like this, who by the nature of their sexual orientation simply cannot procreate in the same way a heterosexual couple can, to a different standard than you would hold a couple having children in a traditional manner to.

I've been a parent for ten years to a white child. In that time, neither I or my wife have ever been accused of being racists for having a child who resembles us, since it is just assumed, correctly, that he is the natural result of what happened when we decided to make a baby. Nobody has criticized my wife for her de facto "No Blacks Allowed" policy, since it is just part of her overall, "Nobody But My Husband Allowed" policy. It has never been suggested that when we decided to have a baby she should have equally been open to having an affair with some guy from another race, rather than insisting on my sperm alone, lest she out herself as a bigot.

You, and others in this thread, are not allowing this couple the same courtesy heterosexual couples who have babies in a traditional manner are allowed. Which is not fair.
posted by The Gooch at 6:54 PM on October 4, 2014 [17 favorites]


rhymeswithcheery: I think that this couple could have brought this lawsuit without bringing up race

Except that's been covered in this thread, and no, they couldn't have. I feel like everyone about to make a comment in this thread should have to read the bit brought up above, already restated by feral_goldfish. Mainly:
a Utah court did not allow a couple to recover when the clinic used the wrong donor sperm. The couple had selected donors who resembled the father. The clinic used sperm from a donor who was not approved by the couple and looked quite different from them. The court ruled that the couple failed to show bodily harm resulting from their claimed emotional distress and thus could not recover.
sourced from here

Bringing the race thing into it was an attempt to not have the case just flame out, and may have even been proposed by the lawyer. We just don't know. What we do know is that cases have failed that didn't bring that in.
posted by emptythought at 8:33 PM on October 4, 2014 [2 favorites]


Yeah, I read that. Why do you think an Illinois court considering a claim under Illinois law is bound by a 1998 opinion from a Utah court based on Utah law? Have you actually read the opinion in the Utah case? You're somehow leaping from "case that didn't involve racial difference in donors resulted in no recovery for plaintiffs" to "racial difference is therefore likely to be a winning argument in this case." What I'm saying is that there are other (and perhaps better) arguments to be made as to how exactly the plaintiffs suffered damages in this case without bringing race into it.
posted by rhymeswithcheery at 9:01 PM on October 4, 2014


Why do you think an Illinois court considering a claim under Illinois law is bound by a 1998 opinion from a Utah court based on Utah law?

Jeeeze, i don't. I wasn't saying it was "bound". I just think that whether or not there's better arguments to be made, i think there's obvious reasons both relating to the realities of the american justice system and that past case(which i got into above in a much earlier post, do you really think attitudes have changed as far as "bodily harm" goes with violating autonomy?), which is likely one example of many, that would lean to them bringing race into it.

There's riding the moral high horse, and there's "what's most likely to win?". If you can produce some Illinois cases on wrongful birth i'd be quite interested, but as it is as a layman with no accounts to access records all the relevant info i've seen was that AFA report.

It also wouldn't surprise me if this wasn't the type of case that's brought very often, and that the "many" i mentioned above might be a double digit number in a decade, or even less. I don't think "well lets look at how it's gone in other states" is an out of line way to be taking this, it isn't a car accident.
posted by emptythought at 10:43 PM on October 4, 2014


If you really cared about the potential legal strategies, you'd also mention the New York case, which comes in the same paragraph as the Utah case and has the opposite outcome:

"In one New York case, for example, a clinic mistakenly implanted an embryo created from gametes of one couple, and intended for their use, into another couple undergoing IVF. The recipient couple ultimately gave birth to twins, one of whom was the child of the other couple. Both couples sued the clinic for the error, and the case was allowed to go forward. "

There's a real lack of charity starting to percolate in this thread: this is neither a case of "no blacks allowed" nor of "Just go ahead and throw anyone's sperm into me, don't care whose it is." Both of these are terrible misreadings, deeply disrespectful of both the couple and the concerns we've raised in this thread, and seem designed to provoke rather than discuss.

The key, for me, is that the couple sued under two torts: breach of warranty and wrongful birth. What a lot of us are arguing is that they should lose the wrongful birth suit and win the breach of warranty suit. The clinic used the wrong sperm, and so breached its warranty. But the fact that the baby that resulted wasn't just the wrong baby but is also of mixed race isn't worse.

For me, to say otherwise is to say that "you violated my body autonomy" is somehow worse when there is miscegenation involved. I like the Coates idea of quantifying white privilege, but I'd only support these women getting paid for the hardship of raising a black child and having The Talk about police and facing charges of benefiting from affirmative action and always having people want to touch her hair and having people deny her housing and employment on the basis of her skin color AFTER all the other black mothers in the country get paid first.
posted by anotherpanacea at 4:57 AM on October 5, 2014 [7 favorites]


I'd only support these women getting paid for the hardship of raising a black child and having The Talk about police and facing charges of benefiting from affirmative action and always having people want to touch her hair and having people deny her housing and employment on the basis of her skin color AFTER all the other black mothers in the country get paid first.

Fair enough, but that's not a legal argument. This is a wrongful birth suit: they're arguing that their child will face the quantifiable harms of being a POC as a result of the sperm bank's negligence. Black people who were conceived the "normal" way don't have any individuals to sue, under this tort. Regardless, reparations would not be a civil action.

(Standard proviso that I don't think this suit is such a hotsy-totsy idea, despite the fact that I understand where the parents are coming from, and that the sperm bank is the one who done goofed.)
posted by Sticherbeast at 6:37 AM on October 5, 2014 [1 favorite]


It's a wrongful birth suit AND a breach of warranty suit. The problem is confusing the two, which a lot of the couple's supporters are doing. It's like any case: if you're accused of cocaine possession and distribution, you can be guilty of possession but still protest the distribution charge.
posted by anotherpanacea at 7:29 AM on October 5, 2014


Okay, I'm circling back around because I think I know why the language used in this lawsuit is really bothering me.

And let me say that I understand why the lawyers are phrasing it this way, and I also get that they should get damages for the really gross negligence on behalf of the sperm bank.

I'm very uncomfortable, though, with the focus being on the birth mom as the victim because (her words in interviews) this will make the BIRTH mom uncomfortable and inconvenienced.

The victim here, in my mind, is the daughter. She should not have to be exposed to harm and racism and ignorance. And yeah, I get that no lawsuit can protect you from that and our black kids are stuck with racist ignorance everyday. Which should not be the case, but there it is. When you file a lawsuit and state that the race of your child is a detriment worthy of compensation because they are a minority--not because they don't match you--but because they are specifically black? That doesn't sit well with me because I feel in my gut (not rational, but there you have it) you are implying that my black son is somehow less than. I get, rationally, how this is not equal to why the lawyers are pursuing this strategy. But damn, yes, it feels pretty personal.

I have hesitated to post this because I know that there will be people who swoop in here and wag fingers and tell me, "but this case isn't about you!" and I know that. But just like every other case that exposes cultural norms that are uncomfortable or controversial to some (pro-life vs. abortion rights, gay marriage, etc.), this bumps up against my life and underlines things in our culture that I am living right now. So, yeah.
posted by jeanmari at 7:47 AM on October 5, 2014 [2 favorites]


It's a wrongful birth suit AND a breach of warranty suit. The problem is confusing the two, which a lot of the couple's supporters are doing. It's like any case: if you're accused of cocaine possession and distribution, you can be guilty of possession but still protest the distribution charge.

I'm certainly not confusing the two. Nobody's disputing the breach of warranty suit, so I'm not bothering to talk about it. The wrongful birth suit allows for more and different forms of damages than a breach of warranty suit, which is why their lawyer would bring it.

What I'm saying is, "why should this couple get paid when African-Americans put up with this crap all the time, for free" is not a legal argument. It's an argument from consequences: you're not wrong that it's generally unfair that this couple should get a payout before other people, it may well be that African-Americans should generally receive reparations, but those are separate categories of issues. They have no legal bearing on whether or not this particular wrongful birth suit should fail or succeed. The only real commonality is the agreement that there are quantifiable harms as a result of being perceived as black (or mixed-race) in the US.

...

I'm very uncomfortable, though, with the focus being on the birth mom as the victim because (her words in interviews) this will make the BIRTH mom uncomfortable and inconvenienced.

You're not wrong to find it uncomfortable, but: wrongful birth suits are, definitionally, brought by the parents, not the child, and they have to focus on the harms to the parents. (Contrast with a wrongful life suit.) When one sues under this tort, they're saying something like, "as a result of the doctor's negligence, I gave birth to a child who will require additional resources to raise, both for the child and for myself. Therefore, the doctor should subsidize these extra costs, and also pay for my pain and suffering, and perhaps there should also be punitive damages to put the fear of God into doctors who would make similar errors".
posted by Sticherbeast at 8:37 AM on October 5, 2014 [4 favorites]


Sure. So the question is: are these "harms" or are they the deprivation of unearned privileges? That is, if I make a mistake and in-so-doing deprive you of something you have no right to, like stolen property, it's not a harm for which you can recover. It's worth noting, here, that the original Invisible Knapsack essay explicitly addresses many of the harms the couples cite.

Say you go to a plastic surgeon for a skin peel, and through their medical malpractice, you develop skin color typical of an African-American. Certainly you can sue for the malpractice! But should you get more money because not only have they made an error, but you look like our society's underclass and thus suddenly experience daily discrimination, followed by you and your wife getting kicked out of your all-white country club? Should you really be suing the DOCTOR for the lost country club access, and not the country club?
posted by anotherpanacea at 9:13 AM on October 5, 2014


If you grew up in a house with a toilet and a refrigerator, then that was a result of unearned privilege. Therefore, you can never sue for acts of negligence which result in the loss of such a lifestyle.
posted by Sticherbeast at 9:21 AM on October 5, 2014 [1 favorite]


Should you really be suing the DOCTOR for the lost country club access, and not the country club?

This is a false dilemma. You would sue both of them, for different causes of action.
posted by Sticherbeast at 9:29 AM on October 5, 2014


As classist and crypto-racist the idea of country clubs are, I don't think any actual country clubs would be as blatant enough to kick people out for suddenly turning non-white. If they did, then the victim of the skin peel accident can just sue the club, in addition to their surgeon for malpractice.

Which kind of ties in that hypothetical to my question about- this lawsuit is essentially arguing for compensation for potential damages caused by loss of privilege. So it seems like everyone is taking as a given that her town is racist, is a bad environment for her mixed-race child, etc. But the court can't just take that as a given, can it?
posted by Apocryphon at 10:45 AM on October 5, 2014


Well i get it now, where the "they're racists for doing this!" people are coming from, with the "why should two white ladies get compensation for having to deal with the realities every black mother does?" point.

I wasn't even actually aware they were still bringing two suits. I was under the assumption that since they had been refunded, they were simply seeking damages for wrongful birth.

I have no real response to the point that, if this suit succeeds, the message being sent is a white supremacist one of "yea wow, all that shits true, and a white lady shouldn't have to deal with that". There's not really much else you can take away.

Not really sure how much i'm generally receptive to the idea of "they shouldn't win, and they shouldn't have brought this, because it's not their place and they don't deserve to win"... but that's not really an improper statement when you take that into account.

Not really something i expected to change my mind on, but yea. I still don't think they're inherently racists or a lot of the stuff that's been leveled at them, but i'm not really comfortable with what them winning this case would mean now that i've reflected on it more and had some new ideas about it fed in to my brain to percolate for a while.
posted by emptythought at 12:13 PM on October 5, 2014 [1 favorite]


So the question is: are these "harms" or are they the deprivation of unearned privileges? That is, if I make a mistake and in-so-doing deprive you of something you have no right to, like stolen property, it's not a harm for which you can recover.

From a legal perspective I don't think courts take into account whether a person really deserves the things they have in the way you are talking about, and it wouldn't really make sense for them to do so. If someone sues a mechanic for failing to fix their car, does it matter legally if they received the car as a gift from their rich uncle versus if they worked in a sweatshop for ten years to save up enough money to buy it? Stolen property is easier to talk about because it's a question of legality, whereas you are more talking about a question of fairness, which is much harder to deal with in a way that's consistent and unambiguous.
posted by burnmp3s at 12:55 PM on October 5, 2014 [2 favorites]


From a legal perspective I don't think courts take into account whether a person really deserves the things they have in the way you are talking about

Well, I doubt any court in the land will admit white privilege. I also don't know how much of what we call white privilege is actually human rights denied to non-whites; that is, I don't know how much of it could be had by all if we weren't so terribly racist, and how much of white privilege is stuff that we only get because we are so terribly racist. I'll bet we could at least get the whole hair-salon-for-all-types-of-hair thing nailed down.

But courts do admit "public policy" concerns into which torts they'll allow a plaintiff to proceed on, and juries certainly don't respect all harms equally. So I think there's room for these and similar considerations.

The hardest thing of all is to ask: how much better off would you be if, instead of your current child, you had a different one? I don't care what's wrong with her: once you hold your child in your arms the idea of trading her for a different one (or wishing someone would pay you for the inconvenience of the daughter you've got) makes a lot of parents pretty queasy. And that substitution is precisely what's going to be at stake in this case.

Maybe they should win, maybe that would be good for non-white people generally and for Payton particularly. But I don't think my revulsion at the way this complaint describes these harms is completely off base: there is something weird and disturbing about saying that you'd be better off if you had a white daughter, and somebody else should pay to remedy that. (And I feel this even though I strongly suspect we should work hard and pay reparations to make having non-white daughters and sons easier than our white supremacists society currently makes it.)

Put yourself in the jury's shoes: would you award damages for the discomfort of visiting a Black hairdresser's? Would you award damages for the plaintiff's family's racism? I suspect this weirdness is going to strike the judge and jury, too; worse, it strikes a lot of mothers of Black children as weird and may someday strike Payton herself as weird.
posted by anotherpanacea at 7:18 AM on October 6, 2014 [1 favorite]


The thing is, it's not like this couple is trying to give her back or anything. And they're suing for a relatively modest amount. In fact, I'm not sure that award would even make up for, say, disparate earning power.

But there's no need to cut off our noses to spite our face. This suit may show legally what the economic impact of having a black child in a racist town is - which maybe means people will start thinking about needing to fix things for economic reasons.
posted by corb at 8:41 AM on October 7, 2014


The hardest thing of all is to ask: how much better off would you be if, instead of your current child, you had a different one? I don't care what's wrong with her: once you hold your child in your arms the idea of trading her for a different one (or wishing someone would pay you for the inconvenience of the daughter you've got) makes a lot of parents pretty queasy. And that substitution is precisely what's going to be at stake in this case.

I think a lot of it is tied up with the fact that people are uneasy about the concept of being a member of a race that is subjected to racism and prejudice as being "worse" in some objective way that you can put a dollar amount on. If the issue was instead that, say, clinics were using dangerous x-ray equipment on pregnant mothers that caused severe but purely cosmetic genetic birth defects, I don't think people would be here arguing that parents suing the clinic shouldn't want a "normal" baby instead of their severely deformed baby. Race is a much more complicated issue, because it's true that being black in the US is harder than being white while at the same time it's uncomfortable to talk about parents not wanting to have black children due to those reasons.
posted by burnmp3s at 9:16 AM on October 7, 2014


I don't do this kind of work, myself, but it's my understanding that a lot of disability activists oppose the idea of treating disabilities differently than racial disparities. They argue that disabilities only create inequities against a backdrop of "ableism" that privileges certain experiences over others.

That helps explain articles like this one from Black Girl Dangerous, which articulate principled objections to wrongful birth suits:

Angry About The White Lesbians Suing For Having A Black Child? You’re Missing Something
posted by anotherpanacea at 9:38 AM on October 7, 2014 [2 favorites]


Coates: To Raise, Love, and Lose a Black Child
And white people want no part of this. The day I talked to Lucia McBath, I read a story about a white couple suing over "wrongful birth." The "wrongful birth" came about because one of the mothers was mistakenly artificially inseminated by a black man. The mothers claimed that their desire was to "find a donor with genetic traits similar to them." There are all sorts of genetic traits influencing everything from height to weight to eye-color to predilections to certain diseases. But the traits that the couple wanted were those that firmly would place their child under the protective dome of white America.

Instead the parents (Jennifer and Amanda) got a black girl (Payton) who belongs to an outlaw class. One need not doubt the mothers' claims of love to understand what is happening here:
Jennifer bonded with Payton easily, and she and Amanda loved her very much .... Even so, Jennifer lives each day with fears, anxieties and uncertainty about her future and Payton's future .... One of Jennifer's biggest fears is the life experiences Payton will undergo, not only in her all-white community, but in her all-white, and often unconsciously insensitive family .... Jennifer's stress and anxiety intensifies when she envisions Payton entering an all-white school .... Jennifer is well aware of the child psychology research and literature correlating intolerance and racism with reduced academic and psychological well-being.
This scenario is almost indistinguishable from any black parent forced to confront the future of their child in this country. The heart of the problem is that the mother's child has been kicked out the dome and thrown into the wiles where-like all of us-her child stands a not-insignificant chance of becoming Jordan Davis.
posted by tonycpsu at 8:46 AM on October 8, 2014 [1 favorite]


Everything is indeed horrible, but the hair thing does have a shred of truth to it. It's a different skill-set.
posted by schmod at 2:00 PM on October 8, 2014




Everything is indeed horrible, but the hair thing does have a shred of truth to it. It's a different skill-set.

Oh, it's more than a different skill set. See Paitra Russell's doctoral dissertation on African-American hair. Costs imposed include time, money, and Catch-22s, similar to and obviously heightening the costs already imposed on Payton due to her gender.
posted by feral_goldfish at 8:38 AM on October 9, 2014


Rebecca from Fosterhood wrote The Reality of Raising a Mixed Race Child in response to this news story (and writes a lot on her blog about the constant learning she's done to raise her multiracial foster children in their cultures).
posted by Margalo Epps at 2:09 PM on October 10, 2014 [3 favorites]


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