BY ADEYEMI OSHUNRINADE
October 6, 2014
Jennifer Cramblett, a 36-year-old woman from Uniontown, Ohio, filed suit Sept. 29 against Chicago-area Midwest Sperm Bank because the clinic artificially inseminated and impregnated her with the wrong sperm. Cramblett claimed she and her partner Amanda chose a “blond hair, blue-eyed individual” so the child would closely resemble her partner, but instead, they got a mixed race baby they named Payton.
The couple found out about the mishap in April 2012, when Cramblett ordered more sperm from the donor they had chosen, for a second child they intended to have. It was then that Cramblett realized there was a mix-up. Not long after, the sperm bank confessed she was impregnated with the wrong donor’s sperm.
In her lawsuit, Cramblett claims she lives with “fears, anxieties and uncertainty” about Payton’s future in their all white racially intolerant Union-Town Ohio, and raising Payton in her own family, which she claims lacks cultural competence about African-Americans.
Cramblett has filed a wrongful birth suit and is seeking more than $50,000 including other damages for “personal injuries, medical expense, pain, suffering, emotional distress and other economic and non-economic issues, that may arise in the future.
Since you know some facts about baby Payton, the concern here is mainly on the meaning of wrongful birth and how our legal system deals with the issues of damages in a wrongful birth suit.
The wrongful birth cause of action is a unique phenomenon. Although it involves an allegation of medical malpractice, it is not as in most medical malpractice cases arising from physical injury. A wrongful birth action is instead, based on a negligent invasion of the parental right to decide whether to forgo the birth of a child with defect.
It is a claim brought by the parents of a child born with severe defects against a physician who negligently fails to inform them, in a timely fashion, of the possibility that the mother will give birth to such a child, thereby preventing an informed decision as to whether to carry the child to term.
Considering definition of wrongful birth above, one would think Cramblett has no claim for wrongful birth since Payton was born without medical defects. She is a normal healthy child except for her mixed race so, why is Cramblett suing for wrongful birth?
The lawsuit in the Cramblett case was based on the tort theory of negligence. At common law, one who suffers injury to his person or property because of negligent act of another has a right of action in tort. To sustain an action for negligence, the plaintiff must show the existence of a duty, breach of duty, proximate cause and injury to the victim.
Cramblett claims negligence of the sperm bank in failing to exercise caution, while selecting the sperm required for conception is the reason she had a mixed race baby. There is no doubt the sperm bank had a duty of reasonable care, the relationship between Cramblett and the sperm bank with respect to the pregnancy, established the required duty of care in tort.
The sperm bank admitted there was a mistake when it chose the wrong sperm for the conception of Payton. Failure to choose the right sperm requested by Cramblett amounts to a breach of contract, which in legal terms is a breach of duty by the sperm bank, establishing this requisite element of a breach of duty.
To show proximate causation, all Cramblett needs to prove is that but for the Sperm bank’s negligent act she would have had a white baby. That the defendant’s negligence proximately caused her to have a mixed race child.
On the last element of injury, Cramblett could claim that she did not get exactly what she wanted, when she contracted the sperm bank. Instead, she got something else and as a result she has not been made whole.
In some situations parents may be injured by the imposition on them of extraordinary liabilities following the birth of a child. She is in fear of raising Payton in a place intolerant to people of color and must incur costs to move to a racially tolerant town.
On the issue of damages, assessing what Cramblett may get in damages would be the tricky part. The usual rule of compensatory damages in tort cases requires that the person wronged receive a sum of money that will restore him as nearly as possible to the position he would be if the wrong had not been committed.
If the Sperm Bank’s negligence to choose the right sperm amounted to negligence, then the reasonably foreseeable result of that negligence was that Cramblett would incur tangible expenses of adjusting to a different life by moving to a new environment, including medical cost of counseling in order to properly raise her mixed race baby if required.
Cramblett should recover what she paid the sperm bank for the procedure and get as tangible losses, only her extraordinary costs linked to Payton’s birth. Cramblett does not have to mitigate by giving Payton up for adoption as many have suggested. Wrongful birth plaintiffs typically desire a child and plan to support it from the onset. It is the defendant’s duty to help them achieve this goal.
Since Cramblett and her partner’s expectations are frustrated by the sperm bank’s negligence, the extraordinary costs rule will attempt to put them in the position they expected to be in with the sperm bank’s help.
As for the intangible losses of pain and emotional distress, emotional distress damages are not uniformly recoverable once a protected interest is established invaded. There are cases where courts have denied parents damages for emotional distress due to the death of their children.
This case arises from the birth of Payton a healthy child, not a child’s injury or death. To claim emotional distress based on color does not serve public policy and against the desire to end racial intolerance.
There would be future benefits to Cramblett and Amanda as a result of Payton’s birth and though, a court may not allow such to offset the damages, allowing a claim for emotional distress, goes against the principle that damages for emotional distress are not recoverable in wrongful birth actions.
Adeyemi Oshunrinade [E. JD] is the author of ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment,’ ‘Criminal Law-Homicide’ and ‘SAVING LOVE’ available at http://www.amazon.com/author/adeyemioshunrinade. Follow on Twitter @san0670.