The Accidental Mixed Race Baby

It's all over the news:  a lesbian couple used a sperm bank to create their baby girl and now they're suing, because the bank used sperm vial 330 (from a black man) when they had selected sperm vial 380 (from a white man).  They love their daughter, but they're claiming they've somehow been damaged by the mix up. 

One thing's for sure, this legal wrangle should have been conducted privately, because even if the couple is right to hold the sperm bank accountable for their error (should sperm banks really be less accountable than Best Buy for flubbing up orders?), their daughter may be harmed when one day she finds out about her parents' dissatisfaction with her race.  The parents and the sperm bank should have reached a discreet settlement.  Aside from that, is there any problem here?

There are those who condemn this couple for having any racial preference at all.  But why? Race enters into people's attractions, like hair color or body type or other superficial features do.  Your attractions at the romantic level probably have some bearing on which children you find attractive.  (Hey, don't pretend you find all children equally cute and lovable! You don't.)   Picking white donor 380 sounds more racist, but is it really more racist than marrying white guy John Doe, knowing and welcoming the fact that the two of you will have white children?  People condemning the couple for caring about the race of their sperm donor ought to have to publicize a list of people they've dated and 'fess up to how racially selective they've been!  It is not entirely different.

Another unfair accusation is that the lesbian couple wanted a "bespoke" baby, as all sperm bank clients supposedly do.  Clients at sperm bank do have the option of choosing a donor who's extra smart, athletic, good-looking etc., and so this looks very designer-baby-ish.  But you have to put your feet in the shoes of the clients for a moment.  Fertile male-female couples narrow down the type of child they'll have enormously, by choosing each other.  So they can seem completely open to the unbidden, in a Michael Sandel-approved fashion.  A lesbian couple, by contrast, has vastly less control.  Should we really expect them to be, unlike the rest of us, open to having a child with absolutely any father in the universe?  It's true that sperm bank clients often gain control by choosing a smart, handsome whatever-race father, but I suspect this is  in some respects fortuitous. What they want is really just control over the way they reproduce, and the only form of control on offer is optimizing the sperm donor.

So, allegations of racism and wanting a "bespoke" baby: dismissed.  I don't think the couple's choices are objectionable. However, there is something unfortunate here. Ordinary reproduction with a partner has a tendency to make us exclaim, when a child is born, "He's perfect!" or "She's perfect!"  You have to wonder if this baby has been received with that much joy and appreciation, given the lawsuit.  Are babies more vulnerable to parental rejection and dissatisfaction when the gametes are bought at a sperm (or egg) bank?   The lawsuit (regardless of its merits) makes you think "maybe". 


Aeolus said...

I agree with you. No doubt this couple really does love their daughter and wouldn't trade her for anything at this point, but how is this girl going to feel when she finds out her parents sued because she was the wrong baby? I think they'd better write a letter to her right now explaining themselves, date it, seal it, and have it ready.

Jean Kazez said...

Good idea. They're going to have a lot of explaining to do. Must be very strange pursuing the lawsuit and being a loving parent at the same time.

s. wallerstein said...

I just can't imagine that parents who sue a sperm bank feel the same unconditonal love for their child as those who accept what God or fate or chance brings them and love her because it's their child.

Theoretically, parents should love kids whether they're perfect or not, whether they are what they dreamed of or not, whether they live up to their expectations or not.

Parents don't always exhibit that kind of unconditional love. The way kids with birth defects or down's syndrome are treated or mistreated shows that.

It would be nice if all of us were capable of loving, truly loving, at least one person in our life-time. Your best chance to find someone to truly love is your child, since we're all pretty narcissistic and our children carry our genes and if we bring them up, we have a good chance to educate them, aka brainwash them, according to our tastes and weirdnesses.

So if someone is incapable of falling totally in love with their own child because of something as superficial as skin color, there's no hope for them, in my opinion.

Once again, it's hard to believe that someone truly in love with their child would sue the sperm bank.

Jean Kazez said...

Should we really let people make no choices when they go to a sperm bank? Must people be open to just any sperm, unlike hetero. couples who choose gametes by choosing each other? That seems to demand vastly more from infertile and gay couples than is expected from other couples who make babies the usual way. Assuming it's fine to let parents make these choices, the sperm bank has to carry them out--and this is a high stakes thing. People care a lot about how they reproduce, however they go about it. So I don't have a problem with the lawsuit itself--just think all parties should have agreed to handle it discreetly.

s. wallerstein said...

I think it's fine that people make choices in a sperm bank, but if things don't turn out as they wished, it seems that they shouldn't treat their baby as if it were a defective washing machine.

It seems impossible for someone to be so upset about the skin color that they will sue and to love their child inconditionally: very few of us are capable of dividing our energy that way.

A small baby needs so much love and attention that it seems that a parent with ambivalent feelings about her will not do justice to their role as a parent.

s. wallerstein said...

Small children are incredibly sensitive, perceptive and dependent on their parents. So any ambivalence on the part of their parents can do a lot of damage to the child.

Rhys said...

Jean, what would your thoughts have been if the parents had found out about the mixup during pregnancy and so aborted the child and started over?

Jean Kazez said...

I think that would have been awful--it would mean they had given vastly too much weight to their preference for the white man's sperm over the black man's.

But here's a case I find more puzzling. Suppose a couple are infertile and opt for IVF, using the man's sperm and the woman's egg. Two months into the pregnancy they discover another man's sperm was used.

It still seems pretty repugnant to abort, but that reason at least seems better than the racial one.

Jean Kazez said...

p.s. I think I can disapprove of the abortion in the first case and still say the couple was right to hold the sperm bank accountable for its error.

Rhys said...

Do you think abortion is somewhat harmful to the fetus, and that's what makes pre-conception baby trait preferences okay but much less so baby trait preferences during pregnancy? Or is abortion not harmful to the fetus at all and and it's all about what we think certain abortion motives say about the potential parents?

Basically I'm wondering why adding a hypothetical abortion into this scenario would change it so much. You said that it would demonstrate that the parents had too strong a racial preference, but where do you draw the line between a too strong and an acceptably weak preference? (Or is it just an intuition thing?) Would abortion have proved a much stronger kind of preference because of all the pain and effort and extra time the mother would have gone through to have a white baby? In other words, would abortion have been a marker of added unseemly effort on the mothers' parts?

I'm intrigued by this idea that abortion is okay if you don't want any kid at all at that time, but becomes reprehensible when you do want *a* kid, but just not *this* kid. A general preference against all kids at a particular time is fine, but not specific preferences aiming for only a particular kind of kid?

It can't be that the action of the abortion becomes more harmful to the fetus itself when someone has a specific preference for a baby who is a certain way rather than because of a general preference against having a baby at all. So is it basically that these kinds of abortions are rorschach tests? It's not that the abortions themselves are worse, but they reveal just how racist, sexist or ableist someone is and that's what makes them disturbing?

Rhys said...

I found this related post interesting too:


Faust said...

Rhys raises a very interesting point.

I think the answer has to be that a principle is in play that operates something like:

“It is impermissible to make choices on the basis of race.”

So someone who decides to abort a baby on the basis of race is violating this rule.

The general weirdness here comes from the fact that fetuses are genetically human, and therefore have a race. However, they are (on the liberal account) not philosophical persons and as a consequence have no rights.

Therefore even though it is acceptable to abort them (because they are not philosophical persons) it would be unacceptable to abort them because they DO have a race and

“It is impermissible to make choices on the basis of race.”

s. wallerstein said...


Is it always impermissible to make choices on the basis of race or is it impermissible to make choices on the basis of race in the public sphere on matters of employment, academic issues, civil and human rights, housing, medical treament, customer service, etc.?

Let's say that someone says that they would not mate with a person of a certain race because they do not find people of that race to be physically attractive. Is that permissible in your opinion?

I condemn the couple in the original post, not because they are racist, but because insofar as they dedicate their energies to suing the sperm bank, they are ambivalent towards the baby and any ambivalence towards a small child will be perceived by that child and do it psychological harm.

I think that they should dedicate themselves to "dealing with" their ambivalence towards their baby.

Faust said...

Hi Amos,

I think there are multiple overlapping issues in play here. Rhys is trying to figure out why it is OK to abort a fetus generally but not OK to abort a baby for specific reasons (e.g. because of the baby's race).

I tried to suggest the KIND of general rule (and the way in which it might be applied) that might make sense of that kind of distinction.

I don't think that the rule I suggested is a rule I would want to run with across the board. You give a good reason why. Clearly we DO "discriminate" and do so routinely. In matters of sexual taste, the very essence of "sexuality" is to "discriminate" in this or that way. So more work would need to be done to figure out how the principle or rule should be constructed.

I don't see much overlap between the above considerations and how the couple should relate the baby NOW. At this point the decision to bring this child to full personhood has already been made and so the decision tree is entirely different.