White woman sues sperm bank after she gets wrong color baby

[bcla]

I absolutely think they have a right to sue and we are given no reason to think the women are racist. If you order a blue car and are given a black one should you just say thank you the car is nice. You might love the black car. Perhaps it is a more expensive car. But you wanted the blue car. Additionally, black cars are more difficult to keep clean and will require extra work at the detailing shop. Once you are five months pregnant you are invested emotionally in that child. It also sounds as though they tried to work it out for some time before they realized this mistake was going to present more of a challenge then they planned. That sperm bank should have settled this any way they could before it became public. This is going to cost them a bundle.

It would actually be pretty easy for a dealership to exchange a car.

However, the lawsuit itself goes into extensive background on the subject of racial intolerance.

 

[wilkeliza]

I'd be surprised if she didn't sign it. You really think they have a standard patient consent form and she didn't sign it? They would have never released a "specimen" without it because it would open them to liability. It's on their website, and the form was created on Feb 5, 2013 using Microsoft Word 2007 - so it's not as if they added anything. You can open it in Adobe Reader and check the properties. I can also save it as a file on my computer with the date/time the file was last modified intact and that's the exact date. The form had a catchall section on indeminty: VII. INDEMNITY. Patient hereby indemnifies Midwest Sperm Bank and any other laboratory which renders services to Midwest Sperm Bank with respect to the Specimens or the donor(s), and the agents, officers, directors and employees of all of these entities from and against all loss, liability, damage and expense (including reasonable attorneys' fees) of any kind or nature which any of them may suffer or incur by reason of any claim by any party (including, without limitation, the claim of any child born as a result of therapeutic insemination with the Specimens, or the other relatives of any such child) which arises from, is connected with, or is in any way related to any of: 1. The Specimens and any therapeutic insemination in which they are used; 2. Performance or non-performance of any act to be performed (or not to be performed) by facility; What do you suppose this means? I interpret this as meaning that the patient agrees that they won't hold them liable for a mistake (non-performance). If it ever gets to court, they're going to have a copy of this form and the plaintiff is going to be grilled on whether that's her signature and whether or not she understood that she was signing this.

Nonperformance means your insemination of IVF doesn't take or you miscarry. Also it is reference to the fact that some couple have the i domination performed elsewhere so they aren't held liable if they did it or someone else did it.

 

[A_Princess'_Daddy]

I'd be surprised if she didn't sign it. You really think they have a standard patient consent form and she didn't sign it? They would have never released a "specimen" without it because it would open them to liability. It's on their website, and the form was created on Feb 5, 2013 using Microsoft Word 2007 - so it's not as if they added anything. You can open it in Adobe Reader and check the properties. I can also save it as a file on my computer with the date/time the file was last modified intact and that's the exact date. The form had a catchall section on indeminty: VII. INDEMNITY. Patient hereby indemnifies Midwest Sperm Bank and any other laboratory which renders services to Midwest Sperm Bank with respect to the Specimens or the donor(s), and the agents, officers, directors and employees of all of these entities from and against all loss, liability, damage and expense (including reasonable attorneys' fees) of any kind or nature which any of them may suffer or incur by reason of any claim by any party (including, without limitation, the claim of any child born as a result of therapeutic insemination with the Specimens, or the other relatives of any such child) which arises from, is connected with, or is in any way related to any of: 1. The Specimens and any therapeutic insemination in which they are used; 2. Performance or non-performance of any act to be performed (or not to be performed) by facility; What do you suppose this means? I interpret this as meaning that the patient agrees that they won't hold them liable for a mistake (non-performance). If it ever gets to court, they're going to have a copy of this form and the plaintiff is going to be grilled on whether that's her signature and whether or not she understood that she was signing this.

Please see Declan'sDad's post above yours. Your lay interpretation of the intricacies of contract law and how it is enforced is not correct.

As to whether she signed the form you posted or not, she likely did, and it was likely that form, but your google skills, ability to cut and paste from what you find, and decision to render an opinion based on your interpretations, while clearly considerable, do not rise to the level of actual proof nor do they negate an actual contract attorney's (which I am definitely not!!!) ability to argue that a contract is not enforceable when an egregious breach of said contract occurs. It could likely even be argued that the entire contract is void because the consideration stipulated to be provided by the sperm bank, ie the sperm of Donor 380, was not provided. No consideration, no enforceable contract.

 

[bcla]

Nonperformance means your insemination of IVF doesn't take or you miscarry. Also it is reference to the fact that some couple have the i domination performed elsewhere so they aren't held liable if they did it or someone else did it.

That was covered in section V (Disclaimers), and that included failure to induce pregnancy, birth defects, natural abortion, or characteristics of a child. They also make it clear that they only provide "specimens" to be inseminated under the direct supervision of a physician.

Also - I read it some more, and the section about "performance" is relating to the facility that performs the insemination. However, there's still a disclaimer of warranty that would seem to the catchall that would cover mistakes.

In no event shall Midwest Sperm Bank be liable for incidental or consequential damages of any kind to Patient, Facility, or to any child born as a result of therapeutic insemination with Specimens supplied by Midwest Sperm Bank.

 

[declansdad]

That was covered in section V (Disclaimers), and that included failure to induce pregnancy, birth defects, natural abortion, or characteristics of a child. They also make it clear that they only provide "specimens" to be inseminated under the direct supervision of a physician.

Also - I read it some more, and the section about "performance" is relating to the facility that performs the insemination. However, there's still a disclaimer of warranty that would seem to the catchall that would cover mistakes.

In no event shall Midwest Sperm Bank be liable for incidental or consequential damages of any kind to Patient, Facility, or to any child born as a result of therapeutic insemination with Specimens supplied by Midwest Sperm Bank.

You continue to beat a dead horse with this waiver point. As was pointed out, your understanding of contract law is lacking.

 

[Lisa loves Pooh]

That was covered in section V (Disclaimers), and that included failure to induce pregnancy, birth defects, natural abortion, or characteristics of a child. They also make it clear that they only provide "specimens" to be inseminated under the direct supervision of a physician.

Also - I read it some more, and the section about "performance" is relating to the facility that performs the insemination. However, there's still a disclaimer of warranty that would seem to the catchall that would cover mistakes.

In no event shall Midwest Sperm Bank be liable for incidental or consequential damages of any kind to Patient, Facility, or to any child born as a result of therapeutic insemination with Specimens supplied by Midwest Sperm Bank.

This wasn't "wrong characteristics". If was wrong 50% of the DNA, period.

Based on your testament, they could just mistakenly give her the sample of another species and they would be off the hook.

The liability statement you are quoting is for things they have NO CONTROL over.

Mixing up vials is something they DO HAVE and SHOULD HAVE control over. If doesn't take law degree to dicipher the difference.

 

[bcla]

You continue to beat a dead horse with this waiver point. As was pointed out, your understanding of contract law is lacking.

You really think a sperm bank should be responsible for a parent's perception of how others react to a child? Read the lawsuit and it's pretty clear that their request for damages is about just that. If it wasn't they wouldn't have gone into detail about the family and the community.

 

[bcla]

Mixing up vials is something they DO HAVE and SHOULD HAVE control over. If doesn't take law degree to dicipher the difference.

But what's their liability? A lot of contracts state that it would be limited to providing a refund of the cost of a product and/or services.

 

[Gracie09]

That was covered in section V (Disclaimers), and that included failure to induce pregnancy, birth defects, natural abortion, or characteristics of a child. They also make it clear that they only provide "specimens" to be inseminated under the direct supervision of a physician. Also - I read it some more, and the section about "performance" is relating to the facility that performs the insemination. However, there's still a disclaimer of warranty that would seem to the catchall that would cover mistakes. In no event shall Midwest Sperm Bank be liable for incidental or consequential damages of any kind to Patient, Facility, or to any child born as a result of therapeutic insemination with Specimens supplied by Midwest Sperm Bank.

What you are not understanding is that the contract was for A and they sent B, therefore they did not perform the contract as written. They are indemnifying themselves against the child born having a illness such as Down's syndrome.
Also, just because a party puts a clause in their contract doesn't mean it will be upheld in court. If it's deemed to be unconscionable then the judge can simply throw it out. Again, if I go to have surgery to amputate my right leg, I will be signing hundreds of pages of documents holding everyone and their heirs harmless for accidents etc, but if the doctor cuts off my left leg in error, I can and would sue them (although it would probably settle) and win.

 

[bcla]

What you are not understanding is that the contract was for A and they sent B, therefore they did not perform the contract as written. They are indemnifying themselves against the child born having a illness such as Down's syndrome.
Also, just because a party puts a clause in their contract doesn't mean it will be upheld in court. If it's deemed to be unconscionable then the judge can simply throw it out. Again, if I go to have surgery to amputate my right leg, I will be signing hundreds of pages of documents holding everyone and their heirs harmless for accidents etc, but if the doctor cuts off my left leg in error, I can and would sue them (although it would probably settle) and win.

However, is there a right to a particular outcome? Maybe I've got it wrong, but it sounds to me as if the participants in this thread understand that the sperm bank can't be held liable if a child has a birth defect, or if the characteristics of the child aren't what the recipient had in mind (donor had blonde hair but the child ended up with red hair).

If the mother had simply stated that the cause of action was the mistake of the sperm bank was the sole cause of action without any background of her family and her community in regards to race, hardly anyone would think she didn't have a good cause of action. However, that she's citing racial intolerance as a reason why she should be able to extract sizable damages is what I (and apparently many others) find objectionable.

And frankly I've seen pictures of the kid. If someone showed me one without my having read about this case, I'd think she was a white kid with curly hair.

I'm also wondering if the community doesn't have a good cause to file a class action defamation suit against her. I wouldn't be surprised if this lawsuit hasn't depressed property values in the area or people living in the community being made to feel uncomfortable by others.

 

[Lisa loves Pooh]

But what's their liability? A lot of contracts state that it would be limited to providing a refund of the cost of a product and/or services.

Medical malpractice.

And while there is no guaranteed outcome. There is an understood guarantee of correct attempt.

There was no correct attempt.

They should not offer a selection of samples of they cannot guarantee the correct sample would be used. And that would have also been listed that stipulation as well.

Certainly there needs to be some punitive action and not a simply "oops, our nad--here's a refund".

And wrong samples don't produce miscarriages or birth defects. So saying -- you have a healthy baby, have a nice day does not absolve them of their error.

This is not something where the business gets to hide behind limited liability legal language. Nice try, though.

 

[DawnM]

Did you watch the piece?

She said they hung up on her and then she received a partial refund in the mail along with a short apology letter.

Oh no not at all. I was just responding to the report that the clinic hung up on them and said they can't discuss it any further. That doesn't add up with the refund of services story line.

I think these cases are always so hard. I think they should get damages because they have chosen to pay for therapy and know they will need therapy for their daughter later as well as moving for the 2nd time. However if their daughter finds out later it can make for issues for her since emotional damages have come into play.

 

[Gracie09]

However, is there a right to a particular outcome? Maybe I've got it wrong, but it sounds to me as if the participants in this thread understand that the sperm bank can't be held liable if a child has a birth defect, or if the characteristics of the child aren't what the recipient had in mind (donor had blonde hair but the child ended up with red hair).

If the mother had simply stated that the cause of action was the mistake of the sperm bank was the sole cause of action without any background of her family and her community in regards to race, hardly anyone would think she didn't have a good cause of action. However, that she's citing racial intolerance as a reason why she should be able to extract sizable damages is what I (and apparently many others) find objectionable.

And frankly I've seen pictures of the kid. If someone showed me one without my having read about this case, I'd think she was a white kid with curly hair.

I'm also wondering if the community doesn't have a good cause to file a class action defamation suit against her. I wouldn't be surprised if this lawsuit hasn't depressed property values in the area or people living in the community being made to feel uncomfortable by others.

They have a right to be inseminated by the sperm they selected and paid for. Due to negligence on the part of sperm bank that did not happen (multiple times). The race stuff is thrown in there by the atty to beef up the suit. Like when we were adopting our second dd our atty put stuff in the complaint that seemed small to us but made a difference in the outcome. It's their job to choose how to word legal documents for the outcome they want. So what the plaintiffs may have said in response to a question like is anything more difficult because you have a biracial child. And they answered something like we have to drive further to find a place to get her hair cut and we are thinking of moving because our town isn't as diverse as we want and we have heard some negative comments from people is put in a complaint, the media grabs on to it and we're off to the races.

 

[wilkeliza]

Did you watch the piece? She said they hung up on her and then she received a partial refund in the mail along with a short apology letter.

I didn't watch the piece only what the previous poster mentioned which said they hung up and then nothing else. I just finished up vacation so only have had the information from this thread.

 

[bcla]

They have a right to be inseminated by the sperm they selected and paid for. Due to negligence on the part of sperm bank that did not happen (multiple times). The race stuff is thrown in there by the atty to beef up the suit. Like when we were adopting our second dd our atty put stuff in the complaint that seemed small to us but made a difference in the outcome. It's their job to choose how to word legal documents for the outcome they want. So what the plaintiffs may have said in response to a question like is anything more difficult because you have a biracial child. And they answered something like we have to drive further to find a place to get her hair cut and we are thinking of moving because our town isn't as diverse as we want and we have heard some negative comments from people is put in a complaint, the media grabs on to it and we're off to the races.

And to additionally try to beef up the lawsuit they've gone to the press with those allegations. If they thought they were alienated by their community because they're a lesbian couple and then because they've got a mixed-race child, then they haven't seen anything yet after they made allegations to the press about how they perceive that community.

 

[lustergirl]

Oh no not at all. I was just responding to the report that the clinic hung up on them and said they can't discuss it any further. That doesn't add up with the refund of services story line.

I think these cases are always so hard. I think they should get damages because they have chosen to pay for therapy and know they will need therapy for their daughter later as well as moving for the 2nd time. However if their daughter finds out later it can make for issues for her since emotional damages have come into play.

Guess I am just not getting the fact that the daughter needs therapy? Hold old is she? Two years old? She doesn't even know the difference does she or is this something that her parents are just pushing? I have been married to a black man for 21 years and have two beautiful sons, ages 25 and 21. My sons never needed therapy because they are biracial. Give me a break. I don't believe this part of the story.

 

[wilkeliza]

Guess I am just not getting the fact that the daughter needs therapy? Hold old is she? Two years old? She doesn't even know the difference does she or is this something that her parents are just pushing? I have been married to a black man for 21 years and have two beautiful sons, ages 25 and 21. My sons never needed therapy because they are biracial. Give me a break. I don't believe this part of the story.

I guess the difference is your husband would know what to do if your sons came home and said someone called them the n word or teach them the culture of their ancestors. These ladies don't feel prepared to help her when it comes to issues like that. They can do these things but it is going to take more time, effort and potentially money than they signed up for.

Also I don't believe the 2 year old is currently in therapy just the adults.

 

[Lisa loves Pooh]

I guess the difference is your husband would know what to do if your sons came home and said someone called them the n word or teach them the culture of their ancestors. These ladies don't feel prepared to help her when it comes to issues like that. They can do these things but it is going to take more time, effort and potentially money than they signed up for.

Also I don't believe the 2 year old is currently in therapy just the adults.

I am not buying that it is truly a hardship that there aren't any resources that exist at all that could possibly help them to cope and educate with such scenarios.

At this point, they are choosing ignorance to support their claim. I would hope the therapists are teaching them how to be proactive with their child reading difficulties.

I'm not seeing how this is a financial hardship to them other than they are making choices they would not have made otherwise. But then again, families move all the time.

 

[lustergirl]

I guess the difference is your husband would know what to do if your sons came home and said someone called them the n word or teach them the culture of their ancestors. These ladies don't feel prepared to help her when it comes to issues like that. They can do these things but it is going to take more time, effort and potentially money than they signed up for.

Also I don't believe the 2 year old is currently in therapy just the adults.

Telling your daughter what is important is free. Yes perhaps the couple doesn't know how to address this issue but they should be used to people being judgmental because of their own backgrounds. And why are they just now coming out with the whole lawsuit thing or has it been since the child was born two years ago. You can't fix stupid people and I wouldn't let judgmental people bother me because of my sexual orientation or the fact that I have a biracial child. Is the lawsuit based on the fact that they need this money to get therapy for themselves or for their daughter? Sorry but I think that is pathetic.

Someone correct me if I am wrong about the whole lawsuit thing. I didn't listen to the whole story on the news because I was disgusted.

 

[wilkeliza]

Telling your daughter what is important is free. Yes perhaps the couple doesn't know how to address this issue but they should be used to people being judgmental because of their own backgrounds. And why are they just now coming out with the whole lawsuit thing or has it been since the child was born two years ago. You can't fix stupid people and I wouldn't let judgmental people bother me because of my sexual orientation or the fact that I have a biracial child. Is the lawsuit based on the fact that they need this money to get therapy for themselves or for their daughter? Sorry but I think that is pathetic.

The damages portion seems to come from the cost of moving to another town. I believe they said they waited so long because they wanted to see how things would be and two years on they now think they are owed damages.