Let’s wait till we see how this plays out. Maybe the lawyer has an excellent reputation and she (and her beautiful daughter) will end up with a tidy college fund.
Good question. We don’t know, and it is entirely possible that the court will find that she failed to mitigate her damages.
I should have expounded a bit. It’s not just the failure the identify defects, though that is the most common scenario. It can also be a failure to prevent an unwanted pregnancy. This comes up a lot where a woman with religious objects to abortion has a tubal ligation done (often because she is likely to have medical complications from pregnancy) and gets pregnant anyway. Still not quite a parallel scenario (she wanted a pregnancy, just not this one) but closer to the mark.
I think - in your entirely reasonable view that a baby is not a bad thing just because it comes out black - you may be overlooking the sperm bank’s negligence. To put it in Internet vernacular, THEY HAD ONE JOB: deliver the right vial of jizz. They didn’t. The primary limitation on liability in both tort and contract actions (other than actual causation) is foreseeability.* It’s almost impossible to argue (from a legal perspective) that the sort of damages we are talking about here were not foreseeable to a sperm bank.
*In other words, whether the defendant should have known that a particular result was a plausible consequence of his error. They explain it in law school like this: I run you over. While you are lying in the street, you are hit by another car. That’s foreseeable and I am liable for injuries sustained in the second accident as well as the first (I may be jointly liable with the second driver.) On the other hand, if I run you over and you are o a velociraptor attack on your way to the hospital, that’s not my problem.
Isn’t the part in bold the crux, though? It’s not forseeable that a couple would be economically and psychologically damaged simply because the sperm they wanted was swapped out with another. Nor is it forseeable that a white mother would be so economically and psychological harmed by having a olive-skinned child that she would need to relocate to another community to properly raise the child. All of this seems to be velociraptor territory to me.
That’s what I thought as well, but if this lawyer is correct, the state of Ohio limits recovery for consequential economic damages in wrongful birth lawsuits, even in cases of a real disability. I can’t see where their lawyer expects to go with this “race as an economic consequence” angle.
My opinion: The race aspect is bs. Wrongful birth cases are always icky, because parents have to say they wouldn’t have had their child if they had been able to make an informed decision. I think this places an unfair burden on the plaintiff, because it seems obvious there is emotional distress (and possible economic burdens) in these cases, even though you now have, want, and love your child.
In this specific case, I would not consider race as a relevant factor to award damages, but I would think them entitled to damages beyond the partial refund they received (they did not even refund her for the first batch of wrong sperm that did not result in pregnancy). Regardless of the race in the donor mix up - even if the sperm received had superior dna or similar physical features to the sperm ordered - it is a big fucking deal to find out when you are 5 months pregnant that the father of your child is not the man you chose to procreate with. A clerical error due to a receptionist writing down the wrong number? The same receptionist who hung up on me when I found out about it while 5 months pregnant? No way is a partial refund enough to cover the trauma of that.
But I also think these women were foolish and possibly racist in how they proceeded They found out about the mix up when they wanted more sperm for the partner to have a child with the same donor. Obviously they decided not to have another child after the mix up.
I would have tried to get a settlement that included free sperm from the same donor for my partner (so the siblings would be related), a full refund for previous sperm ordered, and an additional award for the emotional stress caused by the abject stupidity and negligence of the sperm bank. But that’s just my opinion - the race wouldn’t matter to me, barring any undisclosed problems with the mix up donor’s sperm. Looks like a beautiful healthy child, and a missed opportunity for the couple. I’d guess they are what I call “passive racists”, in the sense that they never had to question how they feel about race issues, living an insular life up to now.
Seems like a combination of (possibly racist) foolish clients and a (possibly bad) lawyer dealing with a difficult legal situation.
How many children do you think they should have? Perhaps they only wanted one. We have two - we wanted two, we got two - two is what we can afford.
Now, when we started, we though we’d get two biological children. Then we thought it likely we’d have two Korean children. And in the end we got one adopted child and a surprise biological child. But at no time did we say “well, we need to have a third to make up for the ones we thought we were going to have and didn’t - cause the ones we got didn’t meet our expectation.”
Of course it is. Statistically, being black in America has an economic impact. Sure, they could raise Oprah, but statistically, they are likely to have a child who makes about a quarter of a million dollars less during her life because of her race. Statistically they are likely to have a child who acts out more in school and who requires more intervention services. Maybe you don’t get run over by a second car - but its foreseeable that you might.
The reason the velociraptor example is used (meteorite strikes are popular among older law professors) is to emphasize the fact that things have to be virtually impossible to be unforeseeable as a matter of law.
That is a rather conservative view. If you pick the starkest possible frame of reference, it’s going to come out sounding bad. They didn’t want sperm; they wanted a baby. They were led to believe that they would be able to exercise some degree of control over the baby’s appearance.
Now, if the mother had no objection to abortion and chose to carry the baby to term I absolutely agree she’s in her own boat.
The article stated that they found out about the mix up when she was pregnant, and they wanted to order more sperm for the partner to get pregnant, so they apparently wanted another child at that time.
Can I see a cite for the bolded? Remember that this little girl should not be compared to the general population of black children (many of whom have inherited the legacy of multiple generations worth of discrimination and oppression), but rather the much smaller population of biracial children who are raised by white parents, in a predominately white environment, at the socioeconomic stratum this family currently inhabits.
Comparing her to “blacks in general” is as ridiculous as saying a poor white child from Appalachia is statistically more likely to have high quality dental care, since statistically white people have access to better dental care than nonwhites.
So I’d like a cite for her being statistically more likely to be anything, by virtue of her wheatish complexion and spiral curls. And I sincerely hope her lawyer tries to fly this lame flag at the trial. It will make me laugh and laugh.
She was late second trimester when she found out, and the baby was healthy. Isn’t that putting an undue burden on her to expect her to abort at that time? The damage was done already, wasn’t it?
I guess you can’t collect damages for that type of situation the way the law works in these cases.
Yes, that’s the sort of info I was thinking about. I looked back through the thread but didn’t see if there was a medical/late term issue involved.
Being black has an economic impact on black people who have been discriminated against.
You’re trying to extrapolate the potential economic impact that comes with being a black victim of discrimination to the burden assumed by a white person who has had the “misfortune” of raising a black person. Why can you not see that this link is so tenuous and speculative that its laughably desperate and melodramatic? Not only is the mother not entitled to benefit from her daughter’s future earnings, it’s not a sure thing the daughter will even enter the workplace. She could get married at the age of 18 to Prince William’s son.
If it was so easy to seek damages for this kind of thing, African Americans would have received reparations years ago. But you seem to think it’s a no-brainer this plaintiff is owed compensation for discrimination that hasn’t even happened yet, and to her child no less! Not even her.
That said, once her daughter reaches the age of majority, maybe she will decide to sue the sperm bank for making her a black person instead of white.
See the paper I referred to early, which has a ton references to studies on transracial adoption - which are about as close as you are going to find a statistical sample for this situation.
When people claim people are racist for not wanting to adopt a child of a different race (which usually translates to white people adopting minority children) studies have shown that there are good reasons to have preferential placement that is racially based - kids turn out better when raised by people who look like them. Unfortunately, with fewer adoptive homes than children, the other options for these kids is less appealing than “you are more likely to need a shrink, act out, do drugs, kill yourself, or not go to college.”
Now, the more you look like your parents (there is a study referenced in there where white looking Hispanic children do better than other Hispanic children, off the top of my head), the lower your risks are. And Asian kids tend to fair better, African American kids the worst, Hispanics in the middle (that is likely due to the nature of race relations in our country). So this girl, with her kinky curls and mocha skin, is likely to fair better than a girl the color of dark chocolate. (Not that I mean to tell you what the experience of a black woman is in America - but this doesn’t surprise me any more than it likely surprises you). But fairing better does not - statistically - translate to “fairing as well as if she were a white girl.”
And there are things that white parents can do to give their children a better chance - like living somewhere where there is diversity. Like having friends of different races. Like being involved in your child’s birth culture (little Chinese girls getting taken to Chinese school by their white parents - we did a year at Korean school).
There are probably several thousand pages of studies reviewed for that fifty page paper - some of them not at all applicable to this situation (kids coming from foster care - any study where the kids aren’t adopted near birth wouldn’t be applicable).
I don’t know of studies of white women raising their biological bi-racial child without any contact with the biological father - which would actually be the studies that are the most applicable - because its transracial adoption that is my interest. I’m sure they exist and can be dug up - my hypothesis would be that the results would be similar - but I welcome inquiry - if you find I’m wrong, I’ll be happy to say I’m wrong. And I suspect there are zero studies on bi racial children being raised by two white women without involvement from the biological father - although it does describe several families I know of.
When the daughter reaches her majority, the sperm bank may be out of business. Doesn’t her mother have a responsibility to take action on her behalf?
Her mother’s first responsibility is to make sure her daughter grows up feeling good about herself and her racial identity. This lawsuit undermines that, and that’s no one’s fault except the mother’s.
My comment about the daughter suing the sperm bank was tongue in check, btw.
Not in cases like this. Almost identical cases have been ruled on in the past. All cases I have seen have ruled that the damages she outlined are not permissible bases for damages in the eyes of the court. Some aspects are specific to state law, but the general consensus seems to be that being the wrong race does not constitute harm for which you can be awarded damages. To quote some relevant cases:
Different context, but speaks to the use of racial prejudice as a consideration
There is room for her to recover some damages based on other factors, but it seems the case law is pretty clear on whether her claims will stand up to scrutiny.
How so? What foreseeable harm could arise from the “wrong” sperm?
Why do you keep comparing this situation to adoption. It’s not really close at all. More importantly, if your argument is that average outcomes are relevant, and that this kid will be worse off for having been biracial, then why should lesbians be allow to adopt or use IVF at all given their kids have worse outcomes according to some studies?
You know several families like this?
Weird. I’d have thought it was a woman’s prerogative to choose whether or not she wanted to conceive a mixed-race child, and she didn’t owe anyone any justification much less be required to have the situation blaxplained to her. :rolleyes:
If she wants to sue a company for damages for pain and suffering, apparently she does owe someone a justification. That someone being a courtroom.
If “blaxplanation” is occurring in this thread, its only in response to all the whiteplaining about how awful and burdensome raising a black child is.
I wish someone would answer the question in bold. I’ve asked it too.
This case would be satirical even if the couple was straight. But the fact that we’re talking about two lesbians complaining that it is their child’s slightly ethnic appearance that creates uncomfortable questions about her parentage…this is the kind of stuff high-quality sitcoms are made of.