Are you paying attention, Stringbean?
The lady in question did exactly what you said she was going to do, sue the sperm bank. And the judge has thrown out the case. The case is over. She did not pass Go, she did not win a couple of mil.
Indeed, she sued for “wrongful birth” and “breach of warranty.”
The judge who threw out this case told the plaintiff she can refile the suit under a claim of “negligence,” which is a much more appropriate category. She will win that.
You may wish to read the cite before casting aspersions on the awareness of others…
This is certainly an odd case. Under a contract theory, the sperm bank has clearly breached its contract, but the normal remedies for that would be monetary damages (the difference in value of the black sperm versus the promised white sperm, whatever in the hell that would be) or specific performance (“come on back, and we will impregnate you with the white baby you were promised.”) Clearly neither of those is sufficient nor possible. Further, emotional damages are not available for a contract breach, nor are collateral damages (Law students remember Hadley v. Baxendale from first year contracts?)
I’m not certain what damages have been suffered under a negligence theory of tort. Generally a breach of a contract cannot be construed to be a tort. We could scrap the common law and the UCC if we did that because if I sold you a blue soccer ball instead of the red one you ordered, you needn’t be constrained by mere contract damages, you could say I was negligent or reckless and get around the Hadley rule.
Even if we allow this negligence suit, it’s not the sperm bank’s fault that she lives around racist assholes. The sperm bank would not be the proximate cause of racial animus they suffer, nor are they the proximate cause of the lack of suitable barbers where she lives (which I think is a ludicrous case for damages anyways).
Even if she gets a few bucks in gas money for a trip to another city for haircuts, punitive damages are not available for mere negligence so the recovery will be minuscule.
I can’t really think of an appropriate remedy here except for a refund of the sale price. I think it would be against public policy to try to put a price tag on the difference between white and black children.
I’m skeptical that she will win a negligence suit. If that was such a sure thing, one would think a lawyer would have persuaded her to go that route rather than the much more tenuous claim of wrongful birth. So I’m assuming there is a semi-strategic reason they gambled the way they did. Perhaps her accepting a refund from them and then waiting 2 years will make it hard to argue negligence.
This case went exactly how I thought it would. Anyone know if she finally managed to move to a more cosmopolitan area? Sad to say but all the money she used towards this lawsuit could have been spent on raising her daughter.
I suppose one could neutralize it, and try to say the damage comes from a child of one ethnos living in a community largely composed of some other ethnos. Except…the Supreme Court, in desegregation cases, has pretty much indicated that this is not a bad thing!
Lots of white Americans have deliberately chosen to adopt babies of other ethnic groups – a friend of mine, as white as Jimmy Carter, has two lovely children from China. I think a reasonable judge would have to say: take it as a challenge. Learn from the experience of others – there are lots of them! – who are white parents of black children. Join a group for advice and support.
In nature, there is no guarantee that the child will closely resemble the parents. Many black-haired parents have blond children, and vice-versa. It’s a big spin of the wheel, in the best of circumstances.
The sperm bank made a blunder, but a minor one. It’s kinda like a restaurant served me a raspberry milkshake instead of the blackberry shake I ordered – and I’ve already eaten it! The product has been consumed. I can’t vomit it back up and ask for all of the biological processes that now ensue be cleansed of the unwanted product. Ooh, now my cells with have raspberry molecules in them, for years and years!
Here’s your money back, we’re sorry, get on with your life.
She sued for the wrong thing, wrongful birth is for cases where medical professionals mess up a test for things such as trisomy 23.
Normal people? We live in the real world, not the world of make believe. In the real world a white couple gives birth to a black baby and it’s going to be a cause at the very least for some low grade problems for both parents and the child in the community.
There are a set of issues that parents of a child not of their race have. This is true for all race mixings. I’ve read articles about a black family that is raising a white girl, and they’ve had a ton of problems, including lots of interactions with police who see the big black dad walking around with his small white child. For whites adopting blacks, the black community is actually deeply opposed to this, and there is an organization of black social workers who back in the 1960s came out vehemently against it and largely because of their activities the practice is extremely rare today. Russian adoptions were so popular for white parents because they are white kids that avoid a lot of the issues that can come with interracial adoption. To deny those issues exist just isn’t living in the real world. You do not have to be a racist to choose not to deal with those issues if you have other opportunities (like selecting sperm from a same-sex male in a sperm bank.) At the same time, it’s a great thing that some people have no problem adopting interracially.
As for the hair comment, that’s reality. Barbers are actually not super integrated, it’s a pretty legit thing that black barbers prefer to work on black customers and many are not comfortable (sometimes to the point of referring you elsewhere) with white customers. This is also true vice versa. With some men’s haircuts these days it’s not nearly as much of an issue, but the reality is African-ancestry persons do have different hair than European ancestry persons to the point that for many popular hairstyles it’s the case that a barber who caters to one group may not be great at doing the other hairstyles.
A lot of men now get very short haircuts that any barber can do, but that’s not as true for women. And some of the 30-40 year old male haircuts popular among blacks back then and with some holdovers still wearing them to this day, a white barber would be very out of their element trying to give the customer what they want.
There’s no reason I can think of why she wouldn’t have plead negligence in the alternative in the original suit, if it was a colorable claim.
Higher compensation potential?
Isn’t that pretty obvious?
iswyd.
It would be, if the compensating potential was higher, but it’s not. It’s considerably higher for negligence.
But how do we square this with customary law that doesn’t treat a breach of contract as negligence. If a guy doesn’t paint my house after I’ve paid him because he was passed out drunk, any court in the land will view that as contract damages.
If we now say, oh he’s negligent for getting drunk and we can now award higher damages, then we might as well overrule Hadley v. Baxendale. Although I would support that for the sake of first year law students, it would have a chilling effect on contractual engagements.