Bespoke Babies

A white woman was accidentally impregnated with a black donor’s sperm. Now she’s suing. 

Photo by Fred Prouser/Reuters

What happens if the wrong vial is chosen?

Photo by Fred Prouser/Reuters

All in the Family, the megahit show that dominated the TV of the 1970s, routinely made audiences roar and squirm by inserting the most ignorant sort of bigotry into the yap of patriarch Archie Bunker. In one memorable episode, he freaked out when he discovered he’d been transfused with blood from a black man. His misconceptions about the possible results were characteristically ridiculous: “The colored chromosomes, inside of them corpuscles there, they could maybe make certain changes.”

Funny, but is it so very 40 years ago? Maybe not. Earlier this week a white Ohio woman sued the Midwest Sperm Bank, a Chicago-area company she’d used in trying to conceive. The alleged error? Providing her with the wrong “product”—the sperm of a black man.  The plaintiff, Jennifer Cramblett, didn’t learn of the error until well along in her pregnancy—a pregnancy that resulted in a healthy, biracial daughter, Payton, who is now 2 years old.

Should she have a claim against Midwest Sperm Bank? Before you answer: What, exactly, are her damages? And should we have more sympathy for her than for addled Archie?

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

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

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

What about her own distress over the sperm bank’s error? Cramblett lists a series of reactions that might make you cringe. The news that her child would be mixed-race made her “depressed and angry.” She was also “crying, confused, and upset.” And consider this troubling admission: When Midwest’s receptionist asked her whether she’d asked for a black donor, she replied: “No, why would I request that? My partner and I are Caucasian.” (Cramblett is a lesbian in a committed relationship, but there’s no same-sex marriage yet in Ohio.)

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

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

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

So Cramblett seems to be coping with the hand dealt to her. It’s easy to compare her reaction to Archie’s risible bigotry. Easy, but not completely fair. Because everyone who transacts business with companies that offer sperm and egg donation is looking for a bespoke baby. That often quixotic search reached a depressing apogee with eugenicist Robert Graham’s Repository for Germinal Choice, which Slate’s David Plotz described as “a sperm bank for Nobel Prize winners.” But Graham’s now-defunct effort is just an extreme instance of this phenomenon. Whether this case is similarly outrageous depends on one’s own views of the importance of race, biology, and the whole idea of choice in this context.

In the end, Cramblett’s suit might make us titter uncomfortably not because of its racially charged underpinnings, but because her suit shines a harsh light on the face of the gamete sales industry.

The author thanks Alicia Kelly and the students in his Family Law class for their time and insights.