The Ohio sperm mix-up: What's the harm in giving birth to a healthy, beautiful baby girl?

A claim filed against an Ohio sperm bank (reported in BioNews 774) for using the wrong sperm donor leading to a woman giving birth to 'a beautiful, obviously mixed race, baby girl' ignited a furore because of race. The case illustrates how references to race can affirm social and historical processes grounded upon contested biological truths and prejudice. It also raises important questions about the extent to which the law should respect reproductive decision-making in assisted conception by making the provision of redress available when things go wrong.

Jennifer Cramblett, a 'white' woman in a same-sex relationship, had ordered sperm from a white donor, but was instead sent sperm from an African-American donor. Two years after the birth of her son, Payton, she sued the clinic under wrongful birth and breach of warranty for a minimum of US $50,000 in damages for her emotional and financial losses. The claim is yet to be heard (if it is) and details of the case are obtained from the claim form and from interviews with the claimants, without evidence from the clinic or other parties.

Although asserting that Cramblett had bonded with the child easily and that the couple 'love her very much', the claim form identifies 'fears, anxieties and uncertainty' about the family's future in an 'all-white environment'. Cramblett did not 'know African Americans' until college, apparently. The claim form attempts to substantiate the 'damage' to Cramblett and her partner by making reference to difficulties over getting a 'decent hair cut', having to travel to a 'black neighbourhood' owing to the child's 'typical' African American hair.

Much of this - and the interviews that followed - made for uncomfortable reading. The assumption that 'race', a socially constructed and contested concept, was in some way both caused by a sperm mix-up and also formed the gist of the damage was troubling (see also Patricia Williams' commentary of the case). First, the claim appears to perpetuate myths about race and apparent social inequality. It implicitly reifies a discredited biological notion of race ('By equating race with "genetic traits", Cramblett is claiming that race is a biological fact', wrote McKnight in The New Yorker) and appears to invoke an understanding of race as being definable by perceivably heritable, physical features (e.g. hair and skin tone) - a view that has in the past and present allowed for populations to be categorised and made out to be 'different'.

Crucially, the claim also sends out an implicit message that this 'difference' is somehow inferior. 'Her claim hinges on the same rationale that led to a lineage of Americans who have been treated as second-class citizen', McKnight continues  — it is an unavoidable conclusion that Cramblett is claiming she is somehow worse off having a non-white child, and awarding compensation would merely reinforce such a view.

Second, the claim also raises questions over the extent to which the courts should indirectly support (rather than actively oppose) undesirable social attitudes, such as preferences for racial sameness — turning a blind eye to the wider problem. Cramblett was apparently concerned about raising her child in a small, predominantly white community, which she described as 'too racially intolerant'.

Perhaps then, the money spent on damages could be better spend on public education to change such views, rather than sending out a message that the status quo in this community is somehow OK. These are just some of the policy arguments that significantly restrict claims for compensation resulting from sperm mix ups.

However, while the race angle was the focus of much of the critical commentary around the claim, such perspectives may not entirely capture the essence of the complaint and may even detract from any merits in the claim. Cramblett's treatment was presumably based on promises or reassurances (in some form) made by the clinic in the course of the delivery of its professional, commercial services, which turned out in the end to have been unmet. This strikes a chord of injustice on the level of interpersonal obligations: 'I'm not going to let them get away with not being held accountable', she told NBC News.

Reinforcing this sense of injustice is that from the patient perspective reproductive decisions can be, of course, incredibly important and donor preferences very meaningful. 'Race', or rather skin tone, for example, can represent visual indicators that may be caught up in feelings of identity, resemblance and relatedness, where disruption may have very real and manifest implications in people's lives. Such meanings may be manifestly complex and even totally inaccurate, but they nonetheless remain important to the individuals concerned.

The extent to which this approach can explain the claim in this case is unclear, however, but there is an evident sense that this was a personal decision on Cramblett's part. As Cramblett told the press: 'They took a personal choice, a personal decision and took it on themselves to make that choice for us out of pure negligence'.

Therefore, upon one view the clinic's mix up with sperm represented a significant infringement of Cramblett's reproductive autonomy - a decision made about one's own life choices when having children. Reproductive decisions go to what some consider deeply personal decisions, an essence of which should be guarded from outside interpretation and rationalisation. Indeed in this case, it is one to be made by the patient, and not the clinic.

So is the case about race, or not? Jeff Jacoby in the Boston Globe is unconvinced by Cramblett's insistence that it isn't about race at all. 'It's hard to decide which is more surreal – the race-obsessed complaint Cramblett filed in Cook County Circuit Court, or her after-the-fact pretence that she isn't making an issue of her daughter's race'.

The case is almost certainly about some notion of 'race', but perhaps much of the negative attention received as a result is perhaps based upon an understanding of race that may contrast with Cramblett's own use of the word (although much of this can be disputed).

Such attention can also be explained by Cramblett's poor media management and the wording of the claim form itself, which portrays the damage as being about 'race', rather than resemblance, for example, with little legal discussion of actionable damage or proper evaluation of the claimant's loss. To avoid characterising the damage as being about the wrong skin tone and racial undertones, the claim form could have pursued a more explicit argument based on reproductive autonomy.

The Cramblett claim demonstrates the need to steer a careful path through claims in this context ostensibly based on 'race' — one that permits a critical approach to the deployment of such concepts, while also safeguarding versions of reproductive autonomy. Perhaps then there is a need for a more appropriate language through which to speak about sperm mix ups, both in the public domain and in the law — although there will undoubtedly remain something lost in translation between the two.

One commentator points out that the legal language of 'warranty' and 'wrongful life' is particularly unfortunate given the subject matter — a child. However, the claim form equally reveals shortcomings in the law itself when it comes to private law claims for compensation following errors in assisted conception services - requirements to prove physical, deleterious losses tend to distort discussions of actionable damage in sperm mix-up claims, where the loss is often entirely intangible and subjective — and could be better expressed as such.