If you haven't read my previous comments on the case you should go here for the first one and here for the second one.
In my first post, I argued that the court should not extend the concept of wrongful birth to apply to a claim where the injury is not based on a medical condition of the baby. Otherwise, the court would be forced to pass value judgment on the relative value of a person's race. In my second comment, I discussed the possibility of arguing the case using a different cause of action, but concluded the claim should fail for essentially the same reason. Race is not a disability for which the law should recognize a remedy in tort law.
In other words, in those posts I argued that the cause of action should not be recognized under the currently applicable state of the law. Having discussed that, though, now I will turn to a different and broader question: to what extent should modern reproductive technologies change the way we think about "injuries" for purposes of tort law?
The history of the notion of wrongful birth itself is a good illustration of how societal attitudes toward reproductive rights and practices affects the way we think about torts remedies. The first wave of wrongful birth claims were universally rejected because the defendant physicians did not cause the birth defects or disabilities suffered by the children born to the plaintiffs. However, after it was recognized that women had a legally protected right to terminate a pregnancy, the courts changed the approach. Given the change in attitudes toward women's rights, the approach to the claim changed to whether the conduct of the defendant deprived the mother of the right to terminate the pregnancy. Based on that new approach, courts began to recognize the availability of a remedy in tort for the wrongful birth of a child with medical conditions that could have been avoided by preventing the birth in the first place.
The technology available to facilitate reproduction has also changed over the years. Intrauterine insemination is now commonly used by people seeking to have children but who, for any number of reasons, would prefer not to, or can't, achieve a pregnancy "the old fashioned way."Thus, just like after the recognition of the right to terminate a pregnancy, through the use of modern technology, women or parents can exercise a degree of control over the process of reproduction that was not possible a few decades ago. They can search for and select specific donors to avoid certain genetic mutations or possible health risks, for example. But this also means they can select specific donors to increase the chances their children meet other specifications.
How comfortable are we as a society with the idea that parents who choose sperm donors have the right to select specific traits or components to increase the chances that the child would turn out to look a certain way?
The question is important in the context of the Cramblett complaint because what makes the Cramblett case different, again, is that the reason for the complaint was not the child's hair color but her race. Some find it offensive that the basis of the mother's complaint is the child's race. I, myself, am the father of two ethnically mixed children and find it difficult to hear someone say that my children's ethnicity should be considered to be the equivalent of a disability or birth defect or that their existence should somehow be considered to be an injury to me.
However, there is an important difference between my children and Ms. Cramblett's daughter. My wife and I knew our children would be mixed. There was no way around it: my wife's ancestry is Irish-Norwegian-American, mine is Latin American. We wanted children and knew what to expect.
Jennifer Cramblett and her partner, on the other hand, had the opportunity to plan a child through a very different process. They had the chance to choose from an array of possible donors, each with different characteristics in order to pick the ones they wanted. They, in fact, had the chance to shop around for the specific genetic material they wanted. They wanted a specific type of child, of a specific race, with specific hair and eye colors. And they had a right to expect that the defendant sperm bank would deliver the right components. There is no guarantee that the child born to the process would be exactly what they wanted, but by using the desired components they could certainly improve the chances of getting the desired result.
It is the possibility of managing the process of reproduction that way that allows the plaintiff to have the chance to blame someone for the fact that the child did not turn out to be what she wanted. If we as a society are ready to accept that the reproductive process can be controlled by the parents in a way that allows them to essentially manufacture children to meet certain specifications, shouldn’t parents have the right to recover compensation when the result is not what they expected? Does that difference in the reproductive process justify recognizing a cause of action in tort for what they claim is an injury because of the child's race?
I don't think so because I just can't get around the fact that the claim is asking the court to pass value judgment over the value of living life as a member of a certain race, which is, in turn based on the notion that the child should not have been born. Maybe the plaintiff can support a claim for breach of contract, but that is a different matter.
As usual, however, I am open minded and willing to listen to the arguments. I am willing to be convinced. But right now, I have not heard any argument that would change my mind. If you have one, please send it my way.
Go here for a final update on the case.