White woman sues sperm bank after she gets wrong color baby

[TLSnell1981]

Changed the title for clarification.

 

[suzanna1066@comcast.]

Has she wondered how her daughter will feel about the implications of this---as in she is somehow defective? For her sake alone, I don't think I would have pursued legal recourse.

 

[kkandaj]

As a mom to bi-racial children, I can understand how raising a bi-racial child in an all white community would be very stressful, especially when you weren't prepared for it.

I knew my children would be bi-racial (since my husband is black) so I started learning to do DD's hair before she was even born, using youtube videos, blogs, discussions with my husband's family, other black female friends, etc. It takes a LOT of time to even comb her hair--let alone the time to find the right products for her hair type (there are several different curly hairy types in the AA culture), searching for a stylist that knows how to cut AA hair, caring for it before bed every night so it doesn't get matted. DD has only had her hair cut 4 times in her life--2 times by different people that said they could cut AA hair. One of those times was for a trim that ended up with 8 inches cut off by the end of that because she really didn't know what she was doing. I drive an hour to DD's hair stylist that has only trimmed her hair twice. I do all other hair care for her--braiding, cornrows, moisturizing, etc--but it does take lots of time and lots of money on products. It is hard to imagine the care involved with Type 3c/4a hair unless you take care of it every day. I wouldn't have it any other way-but again--I knew what I was getting myself into.

We live in a predominately white community (98%), but we make it a point to spend time with other children that are of all different races. Our son has had no issues so far, but our daughter has been told by another little (white) girl that she can't do things because she's black. We have the conversations about everyone in the country having the same rights, that DD isn't her "color" and that there is so much more to her. These are hard conversations to have when your child is heartbroken, crying and doesn't understand why someone would be mean to her just because of the color of her skin. Again, we were prepared for these conversations (even though in 2014, why do we still need these conversations ) but can understand how even more difficult they are to someone that wasn't prepared for this. It will get even harder for this couple as their child gets older and understands more.

 

[EMAW_KSU]

However, what should be the consequences? That the sperm bank is negligent isn't in question, but rather what's the monetary value of their mistake? The issue that many have with this is About whether or not the legal system should be involved in the value proposition of racial identity.

I mean, would they be suing if the sperm bank provided sperm from a different donor than they requested, but that donor happened to be white?

I would if I knew.

 

[Stitch69]

Again, would they be suing if it was a different donor than they requested, but who happened to be white?

What if you had purchased the sperm of a white CEO but got the sperm from a white working class man? It really doesn't mater. They purchased X sperm but got Y sperm.

 

[kidshop]

#1--determining if this facility should remain in business.

Medical errors just are not a thing to accept.

Though I think mom is focusing too much on race, the bottom line is that they did a medical procedure with her utilizing the incorrect biological substance.

By not punishing the facility, they are accepting medical malpractice as an appropriate part of health care.

I would want to know what kind of facility this was. Was it it a strip mall or a deep discount place for sperm? A pp outlind a very detailed accountibilty system that I assumed this would be the norm, rather than the exception for a procedure like this.

I do think the lesbian couple may be a touch racist. Yes, a big mistake was made, but that mistake is a human being. I think it is being made very clear her parents are not happy she is the way she is, they want repayment for having been inseminated with her. Maybe they should,have gone the adoption route. The poor child is going to need therapy, not for being biracial but for what her parents think of her. ( now they have to move and do all these extra things because of her)

The clinc should be shut down no question.
I mostly feel for the little girl. She is the real 'victim' of the mistake.

 

[bcla]

I would if I knew.

However, what would you try to recover via a lawsuit?

Here's the text of the lawsuit. The background for why they're suing is eye popping.

http://www.chicagotribune.com/chi-p...ners-grove-sperm-bank-20140930-htmlstory.html

Because of this background and upbringing, Jennifer acknowledges her limited cultural competency relative to African Americans, and steep learning curve, particularly in small, homogeneous, Uniontown, which she regards as too racially intolerant.

As just one example, getting a young daughter's hair cut is not particularly stressful for most mothers, but to Jennifer it is not a routine matter, because Payton has hair typical of an African American girl. To get a decent cut, Jennifer must travel to a black neighborhood, far from where she lives, where she is obviously different in appearance, and not overtly welcome.

One of Jennifer's biggest fears is the life experiences Payton will undergo, not only in her all-white community, but in her all-white, and often unconsciously insensitive, family. Despite her family's attempts to accept her homosexuality, they have not been capable of truly embracing Jennifer for who she is. They do not converse with her about her gender preference, and encourage her not to "look different," signaling their disapproval of her lesbianism. Though compelled to repress her individuality amongst family members, Payton's differences are irrepressible, and Jennifer does not want Payton to feel stigmatized or unrecognized due simply to the circumstances of her birth.

Jennifer's stress and anxiety intensify when she envisions Payton entering an all-white school. Ironically, Jennifer and Amanda moved to Uniontown from racially diverse Akron, because the schools were better and to be closer to family. Jennifer is well aware of the child psychology research and literature correlating intolerance and racism with reduced academic and psychological well-being of biracial children.

So the background of why she's suing is because of her perceived intolerance of her family and the community in which they live. Again, I'm sure they're all thrilled to see them publicly paint them in that light.

 

[FlightlessDuck]

The couple is worried about what others will think about their baby being of mixed race, but they aren't at all concerned what the town thinks of them being parenting lesbians?

On one hand, I think she might have a good case. She was PURCHASING a product, and it was not what she ordered.

On the other hand, she should be thankful she was able to give birth to a healthy, beautiful child.

I'm torn.

This is pretty much my exact reaction, too.

 

[bcla]

What if you had purchased the sperm of a white CEO but got the sperm from a white working class man? It really doesn't mater. They purchased X sperm but got Y sperm.

Perhaps they could sue, but what would the damages be? This woman has stated that her background for the lawsuit is the fears of intolerance/nonacceptance among her family and the community. And what do you suppose background would be for the lawsuit in your hypothetical case?

We fear that our child will not achieve academic competence and may not have a strong likelihood of success in the business world.

I suspect that the sperm bank probably made them sign something similar to an agreement about the "suitability of the end product" that many people sign when they buy something similar to an agreement that there is no "implied warranty of merchantability" or that they can't come back and claim the product was defective. They certainly couldn't guarantee that she got pregnant. And if the sperm bank had a good lawyer, there would be language in their standard forms that would deny liability for consequential damages, even in the case of a mistake.

 

[sam_gordon]

Perhaps they could sue, but what would the damages be? This woman has stated that her background for the lawsuit is the fears of intolerance/nonacceptance among her family and the community. And what do you suppose background would be for the lawsuit in your hypothetical case?

We fear that our child will not achieve academic competence and may not have a strong likelihood of success in the business world.

I suspect that the sperm bank probably made them sign something similar to an agreement about the "suitability of the end product" that many people sign when they buy something similar to an agreement that there is no "implied warranty of merchantability" or that they can't come back and claim the product was defective. They certainly couldn't guarantee that she got pregnant. And if the sperm bank had a good lawyer, there would be language in their standard forms that would deny liability for consequential damages, even in the case of a mistake.

1) Do you think the clinic was negligent?
2) If so, should they have to pay the couple anything?

 

[Uncle Remus]

Have a great day, TL.

 

[bcla]

1) Do you think the clinic was negligent?
2) If so, should they have to pay the couple anything?

Sure they were negligent. And I think the sperm bank's liability should be limited to the refunding the cost of their services. That's the case with a lot of products and services - that there is no consequential liability if the product turns out to be unsuitable for the purchaser's needs.

Heck - I managed to find a company that sells bull semen and frozen cattle embryos for breeding purposes. And they have a warranty statement on the suitability of their product.

http://www.altabeef.com/terms-and-conditions

Warranty

Alta Genetics USA Inc. (hereinafter called Seller) warrants that it has good title to the products sold. Seller further warrants that the semen/embryos sold will be processed according to the regulations and requirements of the United States Department of Agriculture Certified Semen Services. SELLER MAKES NO OTHER WARRANTY OF ANY KIND AND HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The liability of Seller for any defective semen/embryos or semen/embryos damaged in shipment or lost by Seller will be replaced, or the purchase price shall be refunded at the option of the Seller. Seller's liability shall be limited in any event to either replacement of the product or refund of the purchase price at the option of the Seller.

Someone brought up the possibility that a particular donor was expressed to be a CEO. Now I'm wondering if anyone would really have a case if a woman got pregnant as a result of that sperm, and that the sperm bank later revealed that the donor lied about his credentials.

 

[Gracie09]

However, what would you try to recover via a lawsuit?

Here's the text of the lawsuit. The background for why they're suing is eye popping.

http://www.chicagotribune.com/chi-p...ners-grove-sperm-bank-20140930-htmlstory.html



So the background of why she's suing is because of her perceived intolerance of her family and the community in which they live. Again, I'm sure they're all thrilled to see them publicly paint them in that light.

actually that is one of the reasons they are suing. They are also suing because the bank was negligent. If you read through the suit, when they were trying to get pregnant they ordered more vials and at that point the receptionist asked if they were ordering 330 and she said no 380 and instead of reporting that they were initially given the wrong vials she ignored it. And only when they ordered even more vials was the mistake disclosed to them.

Everyone is pointing fingers at the fact that her haircuts are an issue. In real life it is an issue, especially for a white mother of a mixed race child. For our second child a lot was made by the judge in her adoption trial that the birth mother would not allow us to properly maintain our daughter's hair. We were not allowed to cut it, braid it, corn row it, twist it etc. Someone's outward appearance is very important, especially when you are not the "norm".

Also, they are suing for $50,000. A lot of money, but not life changing. They could be asking for much more. People choose their donors for a variety of reasons. We looked for someone who shared physical and psychological attributes with my husband. (He's very tall and very math/science minded). Those were what were important to us. If they had switched our choice with another, no matter what the race or background, we would have been livid.

 

[Cannot_Wait_4Disney]

Exactly, the donor isn't who the couple picked out. They can still love their child unconditionally (I'm not saying they are) and sue for damages.

If they're so mad at what they got that they are suing for damages, that's a clear indicator that they do not love the child unconditionally. How does one even explain that to the kid? "Yes dear. We're sueing their butts because you weren't what we wanted, but we love you unconditionally."

Originally Posted by bcla
However, what should be the consequences? That the sperm bank is negligent isn't in question, but rather what's the monetary value of their mistake? The issue that many have with this is About whether or not the legal system should be involved in the value proposition of racial identity.
I mean, would they be suing if the sperm bank provided sperm from a different donor than they requested, but that donor happened to be white?

THAT is the right question. I think nominal damages of $1 are appropriate. Any punishments for mistakes the clinic made should result in penalties from the appropriate agency.

 

[Gracie09]

If they're so mad at what they got that they are suing for damages, that's a clear indicator that they do not love the child unconditionally. How does one even explain that to the kid? "Yes dear. We're sueing their butts because you weren't what we wanted, but we love you unconditionally."



THAT is the right question. I think nominal damages of $1 are appropriate. Any punishments for mistakes the clinic made should result in penalties from the appropriate agency.

Isn't that what parents do when they sue a doctor for a child who has a birth defect that may or may not be the result of malpractice. Should no malpractice suits go to court because there is an agency that oversees doctors?

 

[bcla]

Also, they are suing for $50,000. A lot of money, but not life changing. They could be asking for much more. People choose their donors for a variety of reasons. We looked for someone who shared physical and psychological attributes with my husband. (He's very tall and very math/science minded). Those were what were important to us. If they had switched our choice with another, no matter what the race or background, we would have been livid.

Maybe you'd be livid, but do you really think you have a case to sue under the terms which you accepted the sperm sample? I highly doubt you would given that any reputable sperm bank will make a recipient sign a form that disclaims liability. And there are legal requirements for listing an amount when there's a lawsuit. It's something like the difference (depending on the state) between filing in a small claims, common/district, or superior court. They're suing for a **minimum** of $50,000, although that theoretically doesn't matter because the number used in the initial lawsuit doesn't necessarily correlate with any final settlement or amount that a judge or jury decides.

I found a specific disclaimer from an actual sperm bank. I've actually seen this place, or at least the lobby of the building from the street. Mostly this place is noticeable because they get a lot of deliveries of liquid nitrogen.

http://www.thespermbankofca.org/content/terms-and-conditions

Limitation of Liability
In no event, including but not limited to negligence, shall Reproductive Technologies, Inc. be liable under any theory of tort, contract, strict liability, or other legal or equitable theory for any special, indirect, incidental, consequential, exemplary, or punitive damages, or for damages of any kind arising out of or in connection with the use or performance of information contained in any materials provided by this web site or in any other materials which are referenced by or linked to this web site, even if Reproductive Technologies, Inc. or an authorized representative of Reproductive Technologies, Inc. has advised the user of the possibility of damages. In no event shall Reproductive Technologies, Inc. cumulative liability to any party for any damages, losses, or causes of action, whether in contract, tort, or otherwise, arising out of or related to this web site or to these terms, exceed the amount paid, if any, for accessing this web site.

And an actual sperm bank recipient form:

http://www.spermbankcalifornia.com/media/Agreement-for-Using-Donor-Sperm1.pdf

9. It is agreed that from the moment of conception, I/we accept this act as my/our own and agree that the child/children so produced are my/our own legitimate offspring and forever waive any right which I/we have to disclaim such offspring as my/our own.

10. I/we absolve, release, indemnify, protect and hold harmless from any and all liability for the mental and/or physical nature or character of any offspring so conceived or born, and for affirmative acts or acts of omission which may arise during the performance and application of this agreement, the physician mentioned in item #1 above and/or his/her designees who perform the Artificial Insemination and FCC.

I'd be surprised if this parent didn't willingly sign a form with similar language, that would disclaim liability for anything as a result of the use of their services - even if there was a gross error.

 

[Allison]

Sure they were negligent. And I think the sperm bank's liability should be limited to the refunding the cost of their services. That's the case with a lot of products and services - that there is no consequential liability if the product turns out to be unsuitable for the purchaser's needs.

Heck - I managed to find a company that sells bull semen and frozen cattle embryos for breeding purposes. And they have a warranty statement on the suitability of their product.



Someone brought up the possibility that a particular donor was expressed to be a CEO. Now I'm wondering if anyone would really have a case if a woman got pregnant as a result of that sperm, and that the sperm bank later revealed that the donor lied about his credentials.

Imagine if the donor who lied actually shopped at Walmart or something. What a case they would have then.

 

[Gracie09]

Maybe you'd be livid, but do you really think you have a case to sue under the terms which you accepted the sperm sample? I highly doubt you would given that any reputable sperm bank will make a recipient sign a form that disclaims liability. And there are legal requirements for listing an amount when there's a lawsuit. It's something like the difference (depending on the state) between filing in a small claims, common/district, or superior court. They're suing for a **minimum** of $50,000, although that theoretically doesn't matter because the number used in the initial lawsuit doesn't necessarily correlate with any final settlement or amount that a judge or jury decides.

I found a specific disclaimer from an actual sperm bank. I've actually seen this place, or at least the lobby of the building from the street. Mostly this place is noticeable because they get a lot of deliveries of liquid nitrogen.



And an actual sperm bank recipient form:



I'd be surprised if this parent didn't willingly sign a form with similar language, that would disclaim liability for anything as a result of the use of their services - even if there was a gross error.

Having gone through IVF and IUI I am well aware of the numerous documents that you have to sign. But giving bits and pieces of forms do not show the whole thing. A patient who is going in for a leg amputation signs documents similar to those, but if the doctor takes the wrong leg, it doesn't protect the doctor from being sued for negligence. It was negligence pure and simple that allowed the mothers to receive the wrong sperm multiple times even though they asked for the correct sperm.

 

[Nennie]

I absolutely feel for the couple, and think the lawsuit is justified.

There is nothing wrong with wanting a child that is the same race as the parents. It makes for less questions, less unwanted comments, etc.

If this were a heterosexual couple, and the husband was white, I don't think so many people would be finding fault with the lawsuit. The fact that it's a lesbian couple should not negate the desire to have a child that looks like you.

 

[bcla]

Having gone through IVF and IUI I am well aware of the numerous documents that you have to sign. But giving bits and pieces of forms do not show the whole thing. A patient who is going in for a leg amputation signs documents similar to those, but if the doctor takes the wrong leg, it doesn't protect the doctor from being sued for negligence. It was negligence pure and simple that allowed the mothers to receive the wrong sperm multiple times even though they asked for the correct sperm.

I understand the issue of negligence. Most states don't allow medical professionals to disclaim liability for a physical harm, such as the consequences of an incorrect diagnosis or a mistake in surgery that leads to a physical impairment. However, if you read the text of the lawsuit, it's basically couched in the terms of community acceptability of a mixed-race child. They're setting this up as an argument about the emotional cost of raising a mixed-race child in what they assume to be an intolerant world. I don't believe that should be something that a court should be attempting to assess with a monetary value.

And if anything, they've just alienated themselves in front of their community and families after accusing them of being racially intolerant.