A few years ago I wrote an article criticizing a case in which the plaintiffs claimed to have suffered an injury because, due to the conduct of the defendant, they ended up giving birth to a child of a different race. (See here.) I argued that it would be wrong to use someone's race as a measure of injury in a torts claim.
I still believe that to be the case, but a new case has been filed in Connecticut which raises the issue in a slightly different way. In the case I wrote about, the plaintiffs specifically used race as an element of their injury. In the new case, the plaintiffs are not doing that. They are also not using the phrase "wrongful birth" to refer to the basis for their claim.
Should this make a difference?
The notion of wrongful birth is usually used to refer to a claim that had it not been for the negligent conduct of the defendant the parents would have chosen not to have the child, and that because they did have the child, the defendant should pay for the resulting expenses (and other injuries). Typically, courts do not recognize recovery for the emotional injury, but might recognize a claim for out of pocket expenses of various types.
In the case I wrote about a few years ago, a white woman provided the eggs and the defendant used sperm from a donor. The mother had specifically selected the donor to be white. Instead, the defendant used sperm from a different donor who happened to be African American. The child born from the procedure is biologically related to the mother but of mixed races.
In the recently filed case in Connecticut, the defendant was supposed to use sperm from the plaintiff/father to fertilize an egg from a donor, so that the child would be biologically related to the father. The defendant used the wrong sperm and thus the couple gave birth to a child who is not biologically related to either one of them and also of mixed races.
Based on those facts, the complaint in the new case simply states that the defendant provided the wrong sperm to the plaintiffs and that the result of the procedure is a child who is not related to the parents at all. This is the basis for their claimed emotional distress. The complaint is careful not to use the term "wrongful birth" or to suggest that the race of the child is itself a basis for emotional distress.
Should the parents in this case be granted a cause of action for the emotional distress if we don't grant one for the parents of a child in the older case?
It seems that the difference comes down to whether the race of the child is the basis of the claim. Is it? What do you think?
You can read more about the case in Connecticut here and here.