Sunday, October 5, 2014

Complaint vs sperm bank: Should the court expand the notion of wrongful birth to cover and injury based on a child's race?

By now, you are probably familiar with a complaint filed a few days ago in Chicago by a white mother against a sperm bank alleging that the defendant mistakenly gave her vials of sperm from an African-American donor even though she had specifically requested the sperm of a white donor with blond hair and blue eyes.  (Story here, herehere and here).  After being artificially inseminated with the sperm, the plaintiff found out about the mistake but took the pregnancy to term.  A few months later, she gave birth to a mixed race girl.  Now, two years later, the mother is claiming that having to raise a child of mixed races has caused her emotional distress.  (The case is called Cramblett v. Midwest Sperm Bank and the complaint is available here.)

The complaint includes two counts of negligence, one for "wrongful birth" and one for "breach of warranty" under a specific Illinois statute.  I have been thinking about these claims for a few days and will probably write something longer about them eventually, but here are my first thoughts.  Actually, just one thought: even though the defendant may have been negligent, the claim for wrongful birth should be rejected.  I would allow the plaintiff to recover for some of the economic expenses she incurred, but most of those have been refunded to her already.

The typical "textbook definition" of a tort includes the notion of "a wrong for which the law recognizes a remedy."  Along those lines, one of the first important lessons we learn when studying Torts is that the law, in fact, sometimes does not recognize a remedy for certain wrongs.  Moreover, sometimes the law should not recognize a remedy.  Simply stated, sometimes unexpected, even bad, things happen to good people, and yet there is no remedy, or there should not be a remedy, in tort available to them.  The reasons for this seemingly unfair result vary, but in the end they relate to the fact that sometimes there are other competing values that are more important than providing an avenue for redress.

The issues raised by the recently filed complaint arguing the mother should be compensated for the so-called "wrongful birth" of a child with features different than those she would have preferred is one of those cases.  The court should dismiss the claim and refuse to recognize the cause of action.  Even though many jurisdictions recognize the concept of "wrongful birth," it would be wrong to extend it to apply to the alleged "distress" suffered because of the birth of a healthy child simply because of the child's race.

Let's begin by talking about the warranty claim because when it comes down to it, the claim is essentially irrelevant.  Usually, the term "warranty" is used to refer to a cause of action for strict liability because of an injury caused by a product.  However, in this case, it means exactly the opposite.  The claim is based on the Illinois Blood and Organ Transaction Liability Act, the purpose of which is to prevent plaintiffs from filing claims under a strict liability theory against defendants in the business of providing blood, plasma, organs and other types of products related to human tissue. According to the statue, the imposition of legal liability without fault against such defendants could inhibit the availability of important scientific knowledge, skills and materials.  Given this public policy, the statute specifically precludes strict tort liability claims and limits the possible liability of the defendants to causes of action based on negligence or willful misconduct.  The notion of a "warranty" in such a claim comes from the text of the statue in that it states that those involved in the rendition of any of the services described in the statute "warrants . . . that he has exercised due care and followed professional standards of care."

This statement means nothing other than what the common law already requires.  The plaintiff still has the burden of proof to argue and prove the standard of care and that the defendant breached it.  Thus, the statute changes nothing and provides no additional, or different, avenue of relief to a plaintiff.  The claim "for breach of warranty" under the statute will only be valid, and survive a motion to dismiss, to the extent the plaintiff can support a claim for negligence.  The claim for breach of warranty is, thus, at best, redundant.

For this reason, the key to the case is the so called "wrongful birth" claim.  This type of claim usually refers to a claim filed by the parents of a child born alive but with a medical condition, birth defect or genetic problem that could have been detected had the defendant not been negligent during the mother's pregnancy.  The claim has been recognized to vindicate the protected right of the mother to terminate the pregnancy had she been told that the expected child was probably going to be afflicted with a serious medical condition.  For this reason, in order to support the claim, the plaintiff would have to assert that had she been given the proper treatment and information she would have, at least, seriously considered terminating, if not that she would have in fact terminated, the pregnancy.  Thus, due to the negligence of the defendant the child was "wrongfully born."  Had the defendant not been negligent, the child would not have been born at all.

Because the basis of the claim is, at least in part, that the parents would have probably acted to prevent the birth of the child, the cause of action is controversial.  However, many courts have attempted to defuse the controversy by limiting the type of recovery available depending on the nature of the injury.  In Ohio, for example, the jurisdiction where the plaintiff in Cramblett actually lives, the Supreme Court has held that only pregnancy and child birth costs are recoverable in a wrongful birth claim.  In contrast, in Illinois, where the plaintiff filed the claim, the courts have decided to allow the recovery of pain and suffering in addition to the types of costs allowed in Ohio and to extraordinary economic costs needed to address the child's medical condition or needs.

In those jurisdictions that allow for some recovery in wrongful birth cases, recovery for extraordinary expenses related to the child's medical condition is common, but recovery for emotional distress is rare.  One issue courts seem to be in agreement, however, is that an award for ordinary expenses related to raising the child is not justified.

The claim filed in Cramblett v. Midwest Sperm Bank is fundamentally different than the typical wrongful birth claim.  The first essential difference is that the child born to the plaintiff in this case does not suffer from any medical condition at all which requires extraordinary expenses.  There is nothing "wrong" with her.  The only thing the plaintiff is claiming is "wrong" is her race.  She is, therefore, implying that the child's race is like the type of disability that would typically justify a wrongful birth claim, and that, for the mother, having a mixed race child is an injury.  However, since filing the complaint, the mother has contradicted herself numerous times in interviews by asserting that the claim "is not about race," an assertion that is clearly nonsense since everything about this case is about race.

Also, although the mother is suing for wrongful birth, the basis of which is the deprivation of her right to terminate the pregnancy and the undesirability of having a child with a serious medical condition or disability, the plaintiff has publicly declared about her daughter that “we love her — she’s dream come true,” and that “[f]or people to think I don’t want this child because of her skin tone is just not the case. It angers me that people would even think I don’t want my child.”  In an interview with NBC News, she also stated that "I don't find any problems with having a mixed-race child."

The problem is you can't have it both ways.  If the child is a dream come true, you can't possible convincingly say that having her has become "an injury" or that she is a disability or that you would rather not have had her.  If you want to recover for the "injury" you claim you have suffered, on the other hand, you can't say she is a dream come true because if she is, you have not suffered the injury you are claiming for.

I believe the mother when she says she loves her child.  The problem is I don't think she understands the implications of the legal claim she is making.  So here is a way to explain the problem.   Let's assume for the moment, as we do in torts cases to argue causation, that the defendant had not been negligent.  What would have been the result?  Since sperm contains the genetic material that makes a child who she is, what the use of the sperm sent by the defendant caused was the birth of that particular child who is now the plaintiff's daughter. If the defendant had not been negligent, the plaintiff would have been provided different sperm – sperm that would have had a different genetic code – and the child that would have been born would have been a different child than the one who was, in fact, born. The child who was born, the one whom the plaintiff now loves and considers a dream come true, would not have been born at all.  That's why the plaintiff's claim, in the end, is based on the assertion that she would have preferred not to have given birth to the child she did give birth to, but rather to a different one – one with blond hair and blue eyes.

Since the child in question does not suffer from any medical condition or birth defect, the plaintiff is, in essence, asking the court to recognize a claim to compensate for her emotional distress at having to care for a child who is not the child she wanted.

As if that was not enough, the complaint is very vague as to the injuries claimed.  It does not explain what is the basis for the requested compensation, so let's try to figure it out.  Here are the allegations:
On August 21, 2012, [the plaintiff] gave birth to . . . a beautiful, obviously mixed race, baby girl. [The plaintiff] bonded with [the daughter] easily, and she and [the plaintiff's same sex partner] love her very much. Even so, [the plaintiff] lives each day with fears, anxieties and uncertainty about her future and [her daughter's] future. [The plaintiff] admits that she was raised around stereotypical attitudes about people other than those in her all-white environment. Family members, one uncle in particular, speaks openly and derisively about persons of color. She did not know African Americans until her college days at the University of Akron.
Because of this background and upbringing, [the plaintiff] acknowledges her limited cultural competency relative to African Americans, and steep learning curve, particularly in [the] small, homogeneous [town she lives in] which she regards as too racially intolerant.
As just one example, getting a young daughter's hair cut is not particularly stressful for most mothers, but to [the plaintiff] it is not a routine matter, because [her daughter] has hair typical of an African American girl. To get a decent cut, [the plaintiff] must travel to a black neighborhood, far from where she lives, where she is obviously different in appearance, and not overtly welcome.
Based on the facts of the case and these allegations, the plaintiff claims that she has suffered "personal injuries, medical expense, pain, suffering, emotional distress, and other economic and non-economic losses, and will do so in the future."  However, there is no explanation as to the nature of the personal injuries, which presumably refers to physical injuries, nor of any of the non-economic damages including the claimed pain, suffering and emotional distress.  Without that information, it is not possible to accurately evaluate the validity of the claim, but let's consider some possibilities:

1.  Emotional distress because of an unwanted birth?  As stated above, the plaintiff has publicly denied that is the case.

2.  Emotional distress due to the fact that the child is African American or of mixed race?  Again, the plaintiff has denied that is the case.

3.  Emotional distress due to the realization that her child is not what she expected her to be?  I am sorry, but that's silly.  Children are rarely what you expect them to be and tort law is certainly not an adequate mechanism to provide a remedy for parental disappointment.

4.  Emotional distress due to the realization that the child's life might be tough due to her race?  Welcome to reality.  If you are not prepared for that because of your ignorance about race relations in this country you should look in the mirror or to your own family to find someone to blame.  And in this case, the plaintiff has done a good job of that.  Part of her complain is based on the allegation that she was brought up in an intolerant culture and was not prepared to parent a mixed race child.  She even implies some of her relatives, including a particular uncle, are racists.

5.  Expenses to help raise the child in a better environment?  The plaintiff has claimed that she wants to be compensated so she can move to a better location to raise her child.  I understand the sentiment, but, again, the claim is based on the notion that having a mixed race child is somehow an injury for which the law should recognize a remedy.  And since the law does not recognize a remedy for ordinary expenses in wrongful birth cases involving children with birth defects and medical conditions, it seems incongruent to recognize such a claim for a child whose only claimed "defect" is that she is of the wrong race.

In addition, in yet another attempt to defuse the controversial nature of a wrongful birth claim, many jurisdictions consider how the benefits of having a child in and of itself offsets the possible difficulties created by the fact that the child has health problems.  In those jurisdictions, the final award granted to the parents would be reduced by an amount equivalent to the emotional benefits of having a child.  In the Cramblett, it can easily be argued that the benefits are high enough to outweigh the value of the claim altogether.  After all, the plaintiff already has declared publicly that both her and her same sex partner love their child, that they did not have much of a chance to get pregnant without the use of artificial insemination, that they wanted to have a child, that they do not have a problem having a mixed race child and that they think the child is a dream come true.  More importantly, the awakening to a different reality and the exposure to cultural differences are likely to (or hopefully should) help the plaintiff and her partner grow as people and become more understanding and tolerant themselves.  Again, if having the daughter is a dream come true, how can she represent a source of compensable pain and suffering at the same time?

6.  Emotional distress over parenting in general?  In the complaint, the plaintiff alleges she suffers from fear and anxiety about her own future, as opposed to that of the daughter.  Should the plaintiff be compensated because the situation has caused her mental anguish in general?  The problem with that claim, which seems to be what the plaintiff is claiming because the complaint has no explanation of the basis for the distress, is precisely that there needs to be an explanation.  The complaint claims that "[r]aising a mixed-race daughter has been stressful."  I am sure this is true, but the fact of the matter is that life is stressful.  Parenting is stressful.  Living life vicariously through our children, seeing them struggle, make mistakes, get picked on, grow up, try and fail, try and triumph, you name it ... all of it is stressful.  And, in the plaintiff's case, the reason for that stress as alleged is the daughter's race and the only way to argue that the defendant caused that stress is to argue, again, that she should have been white which is another way of arguing that she should not have been born.  Try explaining that to the daughter.

7.  Emotional distress because the plaintiff is not well equipped to be a parent to a mixed race child?  The plaintiff argues that she has had trouble dealing with a steep learning curve on how to care for her daughter.  After all, her hair is so different it requires an inconvenient drive to a an all-black neighborhood!  (By the way, I can relate to that argument.  For a number of years, my wife complained about having a hard time finding a place to get my daughter's hair done too.)  That is an interesting argument, but it is not new and it has been rejected when argued in a different context.

In a famous case in which the plaintiff was the child, the argument was made from the child's perspective.  The New Jersey Supreme Court referred to it as a claim for an "impaired childhood," the gist of it being that given the defendant's negligence, the parents were not prepared to handle the difficulties involved in raising a child with disabilities.  As a result, the plaintiff argued that the parents had not been able to provide adequate parenting which constituted a compensable injury to the child.  The court rejected the argument concluding the notion was just as objectionable as a claim based on the notion that the child should not have been born at all.

Are there any other possible claims, or other ways to justify the claims?  Please let me know if you think I am missing something.

Finally, one aspect of the complaint very few people seem to be paying attention to is the effect that recognizing the cause of action would have on the daughter.  (Here is one article that does address the issue.)  She is obviously too young to understand what is happening right now, but if the case drags on for years, and even if it doesn't, at some point she will be mature enough to know and understand.  The mother has stated she will explain the case to her in the future.

How can we explain to the daughter that we should we recognize a cause of action based on the fact that her mother thought she was the equivalent of a genetically defective or disabled child because of her race?  Is that a value we want to advance through the use of tort law?

The causes of action for wrongful life and wrongful birth have been criticized for creating a demoralizing and demeaning image of life with disabilities as a life that is worth less or that is not worth living at all.  What message would it send to recognize a claim based on the notion that a child is a disability because of his or her race?  Exactly what does recognizing the claim indicate regarding the value of life as an African American or any other minority in American culture?  Who wants to explain that to the child?

Sadly, it seems very ironic to me that by filing the complaint in this case, the plaintiff-mother is embracing the same bias or prejudice she claims she wants to prevent her child to be exposed to.  As has been argued elsewhere, "[d]ealing with [the daughter's] blackness has become burdensome and inconvenient for the[ ] two white mothers — because the biracial baby completely upended their decades of enjoying the spoils of white privilege," and I am not sure that it is a good idea to use tort law to create a remedy for that.

The court should not extend the notion of wrongful birth to apply to a claim where the injury is not based on a physical condition but only on the race of the baby.  Otherwise, the court would be forced to pass value judgment of the relative value of a person's race.

Continue reading my thoughts on this case here.

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