Wrongful birth and breach of warranty — that’s what Jennifer Cramblett, a white lesbian mom from Ohio, is suing the Mid-West Sperm bank for. I’m not a lawyer but something about those two terms felt weird. Here’s how Wikipedia defines wrongful birth and U.S. Legal defines breach of warranty:
Wrongful birth is a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities.
Breach of Warranty involves a broken promise about a product made by either a manufacturer or a seller. The term also covers a failure of a statement or agreement by a seller of property which is a part of the contract of sale, when the truth of the statement is necessary to the validity of the contract.
Okay, so let’s take a step back. What got Cramblett and her partner, Amanda Winkon, in court in the first place? The two women decided to start a family in 2011. To do this, they chose to begin their insemination with the Mid-West Sperm Bank. Cramblett and Winkon are both white, and they chose white sperm donor number 380. After a few attempts, Cramblett became pregnant. The couple decided to order more of the same sperm — number 380 — so that Amanda could become pregnant next and their children would be biologically related. When they called to order more sperm, they were told that they’d been given sperm number 330. In response, Cramblett told the sperm bank that they wanted and needed number 380. According to statements from their lawsuit, Cramblett was kept on hold for a very long time and the following exchange occurred:
When the receptionist returned for the second time, she asked Jennifer if she had requested an African-American donor to which she replied, “No, why would I request that? My partner and I are Caucasian.”
About an hour later, Dr. Spirtos called Jennifer to confirm the mistake… Jennifer was crying, confused, and upset. All of the thought, care and planning that she and Amanda had undertaken to control their baby’s parentage had been rendered meaningless. In an instant, Jennifer’s excitement and anticipation of her pregnancy was replaced with anger, disappointment, and fear.
Anger. Disappointment. Fear. All because instead of having an all-Caucasian, 100% white baby girl, Cramblett and Winkon would be having a mixed-race baby. And they did! They had a beautiful, healthy baby girl named Payton. Payton is two years old and according to reports she is “obviously mixed-race” which is newspaper-speak for “Payton has darker skin than her biological mom, Jennifer.” Payton doesn’t have a congenital disease so my understanding is that Cramblett is suing the Mid-West Sperm Bank because she has a half-Black and half-White baby girl. Like, am I crazy?
After reading a little more about wrongful birth, I’m sure I’m not. For Cramblett to win her wrongful birth suit, she needs to prove four elements:
- The existence of a patient-doctor relationship between the defendant and the plaintiff;
- The doctor negligently failed to disclose to the prospective parents the risk of having a child with a genetic or congenital disease;
- The plaintiff suffered harm; and
- The doctor’s negligence caused that harm.
So let’s take stock: Existence of a patient-doctor relationship? Sure, but that’s about it.
At what point was there any risk of having a child with a genetic or congenital disease? The following is a list of congenital disorders that start with the letter B: Bannayan-Zonana syndrome, Bardet-Biedl syndrome, Barth syndrome, Basal Cell Nevus syndrome, Beckwith-Wiedemann syndrome, Benjamin syndrome, Bladder exstrophy, Bloom syndrome, and Bruton’s Agammaglubulinemia. As you can see, Blackness isn’t one of them.
And how about harm? This complaint is filled with all the ways in which Cramblett has experienced what she considers harm but what lots of us know better as racially-motivated microaggressions — things that Cramblett has never really had to deal with or even know about before now. I’ll being using the term Blackness multiple times to make up for the number of times it isn’t mentioned in the complaint — which you really should read. It’s fascinating: Cramblett claims that she was raised around people who hold stereotypical attitudes towards persons of color. Stereotypical attitudes? You mean, like you were raised by racists? Cramblett goes on to say that she didn’t know any Black people in real life until she went to college. She claims to have asked the receptionist at the sperm bank, “Why would I want [an African-American donor]. My partner and I are Caucasian?” which indicates some level of belief that there’s no way a white mother would want a Black donor.
Because of her racist and alleged whites-only upbringing, Cramblett claims not to have been properly equipped to raise a mixed-race baby. Also it’s apparently really really hard to do Black hair, y’all, because getting Payton’s hair done is listed as one of the ways Cramblett has suffered. Cramblett has to drive into a black neighborhood to get Payton’s hair done because the white salons won’t touch her hair. And, Cramblett feels really scared to be in those black neighborhoods.
Ok, so Cramblett and Winkon are worried that Payton will face stigma and hardships due to “the circumstances of her birth.” They also make it a point to stress that Payton and Cramblett have indeed bonded to quash any ideas that this white lady might not be treating her mixed-race, half Black baby girl with love ‘cuz God-forbid we take a minute to recognize that she might very well have some racist feelings to examine.
Yes, I’m judging the hell out of this entire situation. First, all of this veiled racism is bullshit. Stereotypical attitudes? Circumstances of birth? Wrongful birth? Breach of Warranty? This is about racism and anti-Blackness. We don’t need to avoid those phrases; we need to use them. This is about a white lesbian who was totally fine with her racist relatives and the lack of Black people in her life until she birthed a half-Black baby girl. This is how you can be a white lesbian and not be an ally.
Cramblett’s therapist has suggested that they move out of their racist-ass neighborhood and into someplace a little more diverse and maybe far away from their Uncle (who makes a cameo in the complaint) who says racists things about Black people. In an interview with CNN, Cramblett stated, “I want my child to be raised around people that maybe look like her, and unfortunately, we are not going to get all of those assets there in Uniontown, Ohio. We want her to grow up in a community where she feels accepted, feels like it’s normal to be who she is.” Her lawyers claim that this lawsuit is an effort to drum up much needed funds to relocate out of Uniontown, OH — population 98% white. They’re suing for compensatory damages of upwards of $50,000.
Can we also talk about that for just a second? The root cause of the problem isn’t that a white woman was given the sperm of a Black man or that the child was born half-Black; it’s that Uniontown, OH is allegedly creating a hostile environment for this family and their child. Isn’t there something abhorrent and criminal about the fact that a predominantly white community is facing no consequence for its racism and bigotry? We’re all just like “well, you know, that’s how it is when you have a mixed-baby. White people are gonna be mean.” If that’s true and these “stereotypical attitudes” are reason enough for Cramblett and family to leave and be compensated to do. Can we all get $50,000?
But by suing the sperm-bank for wrongful birth and breach of warranty, these women are saying “my child was a mistake.” If they really believe that they’ve been wronged and need the money to move, why not sue for malpractice? Cramblett ordered one man’s sperm — number 380 — and she should have gotten that exact sperm. She put something inside of her body under the impression that she knew what it was. She had no information on this other donor and his genetic history could have contained all sorts of things that Cramblett and Winkon didn’t want for their child. There’s no way around the MAJOR fuck up that occurred at the Mid-West Sperm Bank and I’m all for suing the fuck out of this place for misreading someone’s sloppy handwriting – the real reason for this whole mix-up.
Having a baby seems scary and beautiful. I don’t doubt that Cramblett and Winkon love their baby. I also don’t doubt for a second that this situation is very far from the life they imagined and planned to have together. I can see how they’ve experienced some shock after discovering the mix-up. But what has actually happened is that they’ve been gifted with a beautiful child. I’m curious to know what the harm is in that? I’m curious to know how she is the wrongful birth, how the DNA used to create her was a breach of warranty. Framing the lawsuit in these terms provides a shield for the super toxic race issues at issues here. No one is being real about the fact that Payton’s Blackness is a problem for almost everyone involved in her life. Despite what anyone says, the real hook of this story is that Cramblett is white and she’s been given a Black child.
Cramblett is every white person that’s ever been afraid of having a Black baby and didn’t know it. But even with all the instances of racism around her and in her lawsuit, I don’t think Cramblett has any honest idea that she is racist. Most white people that are don’t have a clue. This would be such a good moment for her to slow down and reevaluate what kind of lawsuit they want to go through with. Do they really want to win a wrongful birth and breach of warranty suit? If they do – and honestly, even if they don’t – they’ll be part of the societal, emotional and often physical violence that many Black women and girls face on a daily basis. Payton is two years old and she’s already the target of emotional violence. If the court rules in favor of Cramblett, they’ll be linking Blackness with a disorder, as a disease that people need to be warned about, a defect that can be sued over. And that is racist, unacceptable and an act of aggression against the Black community in the United States.
In the end, this is an issue of reproductive and racial injustice. What Cramblett and Winkon are experiencing is just a tiny taste of what many Black people and other people of color have to deal with on a daily basis. It’s Cramblett and Winkon’s job as parents to be allies for their child. They can only do that by calling out the abhorrent behavior of the people in their family and their community who are perpetuating racism and making their lives so difficult. This is how they can make sure that their daughter, Payton, will grow up knowing that she is loved and valued.