Abstract
Courts should not recognize an injury for wrongful birth or wrongful life based on the race of the child. In Cramblett v. Midwest Sperm Bank, the petitioner contracted with a sperm bank to be artificially inseminated from an anonymous sperm donor. The petitioner selected a donor with blond hair and blue eyes. The sperm bank accidentally inseminated the petitioner with sperm from a different donor. Petitioner gave birth to a mixed-race baby girl. Two years after the birth, petitioner filed a lawsuit against the sperm bank alleging wrongful birth. The court dismissed her case, nonetheless the issue remains whether race can be an element in a liability claim. Race should never be an element in a liability claim. If courts consider race as an element, race would be categorized as an injury. Based on the facts in Cramblett, two theories of liability can be argued, wrongful birth and wrongful life. Both claims allege a doctor was negligent in preventing a parent from terminating the birth of the child. Both claims allege damages due to a child born with a medical condition, birth defect, or genetic problem. Courts are reluctant to impose liability under either claim because parents receive pleasure from the birth of the child. Awards are limited to extraordinary expenses due a child’s medical condition, and awards due to emotional distress and costs associated with raising the child are rarely imposed. No court has considered race as an element in its analysis of a wrongful birth or wrongful life claim. As a matter of public policy, no court should ever consider race as a factor because black lives matter.
Date Created
2015-01-01
Journal Title
The Scholar: St. Mary's Law Review on Race and Social Justice
Recommended Citation
Alberto Bernabe,
Do Black Lives Matter? Race as a Measure of Injury in Tort Law.,
18
The Scholar
(2015).
Available at:
https://commons.stmarytx.edu/thescholar/vol18/iss1/2
Volume Number
18
Issue Number
1
Publisher
St. Mary's University School of Law
ISSN
1537-405X
