I. Narratives and Political Order
On September 29, Jennifer L. Cramblett filed a suit against the Midwest Sperm Bank for “Wrongful Birth and Breach of Warranty against Defendant.” Where the expecting couple had picked a “blond hair blue-eyed individual” to resemble the non-biological partner, the mix-up had led to the conception of a bi-racial child. The basic grounds for the lawsuit are described in sections eight through sixteen. To summarize, the Sperm Bank had confused two sets of donors: Donor 380 and Donor 330. The confusion is explained in Section 21: “[The Records] are kept in pen and ink. To the person who sent Jennifer vials of sperm in September, 2011, the number “380” looked like “330,” and there are no redundancies to catch errors.”
Simply put, wrongful birth cases are a form of tort in which the claim for damages is based on the cost to parents of raising an “unexpectedly defective child.” Indeed, the term “defective child” is all over the relevant cases. “Wrongful Birth” on a whole has a long history of being associated with the parent’s right to information about their child before carrying it to term. In the words of BGD: “90 percent of fetuses testing positive for Down Syndrome will be aborted in the US. Eugenics cannot be our answer to ableism; advancing disability rights and justice should be.”
I don’t think this perspective ties us to the elimination of wrongful birth entirely. As one of the cases I’ll discuss later demonstrates, there are extreme cases in which a child may never live to see their fifth birthday. On a whole, however, wrongful birth is reflective of a structural consistency within systems to normalize their subjects. One of the many objectives of colonial ontologies is creating environments in which normalcy, through a number of repetitive subjects is preserved, at the cost not only of the value of diversity, but also the ability of subjects to make educated decisions about their own value. This is why I have a very difficult time assessing the development of colonial mentality in colonized subjects, despite the fact that most activists are ready to write such subjects off.
But I digress, as I am not someone who has been disabled, I do not think this is the best perspective on the case I can offer. It is important, however, to note that the exchange between ableism and racism. For when we seek to displace colonial mentality, we would do well to not replace the particulars of our struggle for the struggles of another. The very first sentence of Antonio Negri and Michael Hardt’s Empire is symbolic of this struggle: “The problematic of Empire is determined in the first place by one simple fact: that there is world order.” Thus, the continual process of maintaining world order ought to be evaluated from every perspective that may diverge from our own before we agree in its cementation.
As I attempt to avoid ableist critique, I think the fairest we might say is, in the eyes of our legal system (and here, I simply refer to the fact that this suit has been filed, not whether it holds weight), there is an expected equivalency between the structural role of colonial rule in regards to race, and that of disability. It must be noted that, of course, legal code systems are infamous in their inability to keep up with the present. This suit is reflective of what is possible in the US legal system, and not necessarily of the personal perspectives of the lives involved.
I further have a specific interest in this regard: as a multi-racial child living with a white mother, I no doubt have a very close experience to what Peyton may know throughout her childhood. It is too easy to dismiss this narrative as simply one in which blackness is imposed on an otherwise white family. I think this is a mistake largely stemming from the structural intent on erasing multi-racial experiences. One only need recall the vitriol a certain Cheerios advertisement met to gain sense of mainstream conception of the mixed family. Calling again, Hardt and Negri, their chapter entitled “Symptoms of Passage” focuses on the irony in the relationship between postmodernism and Empire. Namely, that the former fails by only addressing the symptoms of the problem—the lack of pluralism in contemporary discourse, as an example—and completely misses the cause, which is the passage of power. In light of this chapter, I would suggest that the transition in contemporary race issues has been one in which the liberation movements of the late twentieth century sought to replicate the same power structures without regard to how those power structures would impact others.
This has had unique impact on the perception of multi-racial issues. To quote Frank Furedi from this amazing collection of essays (sorry, no PDF but used copies on Amazon start at a 10 cents): “The research agenda of the emerging race relations industry was dominated by the imperative of damage limitation.” This sort of damage limitation included enforcing the lines delineated between the races. As such, there have been centuries in which anti-miscegenation was tacitly enforced on both sides of the issue. In this regard, I refer both to the cherished tradition of fetishizing the Other for their bodies—something that is central to several documents concerned with the colonization of America, for example—and the perception of “selling out” via white skin. As a multi-racial individual, one’s existence always exemplifies some form of disappointment on both sides of the aisle. Analyses that seek to replicate existing forms of power by passing off the role of subjugation to other groups are hardly doing favors to anyone besides their own interests. While history has often written off multi-racial identity as non-existent, we are hardly bound to replicating their mistakes. This isn’t a claim to absolute relativism in regards to racial harassment, but it is a much-needed clarifier on how solidarity can both be a tool of pluralization and suppression. #Solidarityisforwhitewomen sought to emphasize a similar point in regards to the intersection of race and gender.
In this framework, highlighting the “whiteness” of parents against the “blackness” of the child buys directly into the colonial paradigms it attempts to overcome. There is a certain fluidity to the biopolitics involved in multi-racial perspectives and questions. To root this a little more rigorously, we might ask what sort of politics are involved in being an ally, and draw on a number of discussions, inspired by Foucault’s own investigation on the mediation of biopower (it’s right on page one of his first lecture). The process of not only giving birth, but also raising a multi-racial child, I would argue, has a fundamentally transformative prospect on the individuals engaged with such a task. It is in this light that I would like to try and convince you to give consideration to this couple, even as their suit seems to fly in the face of identity politics, and reinforces their own privileged status. And whether it is convenient for most commentators or not, this biological production means that this particular couple is now enjoined in the wider network of individuals for whom the struggle of race has become real. They do not engage with it directly, but Peyton will inevitably impose change upon them. The tears shed in a number of interviews are in some sense for the death of an identity.
Clifton was right that blackness was thrust upon them, but our perspectives on it need not exorcise sympathy. Any multi-racial person could probably relate to the insecurity of identity, for the very concept of secure kinship and belonging are generally privileges of the monoracial subject. For as colonial rule seeks to re-assert itself in the separation between black and white, there will inevitably be a displacement of those who are not careful in regards to toeing the line.
I should also take a second to emphasize what I will not be saying. I am not saying we ought to feel sorry for the white affluent couple, able to both afford artificial insemination and legal counsel when people make mistakes in regard to the insemination. I am not saying their perceived indifference to the nature of their environment was not a problem. I am not saying that the paternalist language of the document itself is excusable on any grounds, regardless of how well the cost-benefit analysis works out in an economic sense. I am also not denying the specific role of their position in racial hierarchy in regards to having their own claims taken seriously where generations of people from all across the world still struggle to even be heard. And I do not imply that I agree whole-heartedly with their particular path.
II. Wrongful Birth Questions
People have been focused on whether there is any significance to the parallel sketched between race and disability, and whether the suit reflects a personal preference on the part of Peyton’s parents. While I do not claim to know precisely with what her family would or would not agree, I am inclined to point out the legal system’s overall dismal failure in handling issues revolving around the lines of color, gender, and disability. On these grounds, I’m already hesitant to extend any such legal-personal analogy. It becomes even more problematic when one considers that the legal system is the epitome of a colonial structure, established and maintained to continue the status quo. Thus, if one wants to focus on the relevance of wrongful birth, an analysis of the cases ought to bear out some reason why wrongful birth is a place in which we might expect more of litigants than the everyday interactions between person and structure.
A wrongful birth claim primarily rests on four points. First that there exists a doctor-patient relationship (I’m presuming the Sperm Bank has a doctor somewhere in there.) Second, that the doctor (or Sperm Bank) failed to disclose information that would otherwise change the decision of the patient to keep a fetus. Third, that the patient had suffered some form of harm. Fourth, that the failure of information led directly to the harm. The most prominent wrongful birth claims have normally revolved around the role of new technology in detecting a child’s future susceptibility to genetic disease or malformations much earlier than thought possible. Prior to Roe v. Wade, a number of them had been rejected on the grounds that since an individual was not legally allowed to have an abortion, the whole concept was a nonissue. Since then, however, the number of states accepting wrongful birth claims has steadily been on the rise. However, wrongful birth has also never been separated from its political identity; since it was Roe v. Wade that gave wrongful birth actual status, it has been the focus of several anti-choice policymakers, lawyers and advocates as a form of suit that depends on the willingness of a parent to have an abortion.
This sounds like an ugly defense, as though to file for a “wrongful birth” claim is tantamount to saying “we don’t want the child.” However, it is important to note that there have been a number of cases in which the suit was filed for a child who had died due to complications from such failures. One such case was Keel v. Banach (1993). In this case, the Keels had a son named Justin, who died at age six due to a number of severe, life-threatening abnormalities. The question was whether the Keels could charge Dr. Banach with wrongful birth, since he was supposed to have discovered these abnormalities within the sonograms, and if he had, they would have terminated the pregnancy. The Alabama Court ruled both that the Keels had a right to file under wrongful birth and that their claim could be met for a number of compensations: “We conclude that the following items are compensable, if proven: (1) any medical and hospital expenses incurred as a result of a physician’s negligence; (2) the physical pain suffered by the wife; (3) loss of consortium; and (4) mental and emotional anguish the parents have suffered.”
In a similar case, Emerson et al. v. Magendantz (1997) Emerson sought compensation for a poorly performed sterilization, which did not stop an unwanted pregnancy. The court used the ‘limited-recovery rule’ in which costs associated with “the medical expenses of the ineffective sterilization procedure, for the medical and hospital costs of the pregnancy, for the expense of a subsequent sterilization procedure, for loss of wages, and sometimes for emotional distress arising out of the unwanted pregnancy and loss of consortium to the spouse arising out of the unwanted pregnancy.” While it was noted that some areas allowed for the “recovery of the cost of child rearing” the Rhode Island Court rejected this on these grounds: “Their decision to forego the option of releasing the child for adoption constitutes most persuasive evidence that the parents consider the benefit of retaining the child to outweigh the economic costs of child rearing.”
Ouch. Wrongful birth courts are harsh. One final relevant case, Shirmer et al.,v Mt. Auburn Obstetrics & Gynecologic Associates Inc. (2006) brought the question of wrongful birth to Ohio, which is where Ms. Cramblett is from. The case was focused Their decision, swift and at the front of the opinion follows:
“We hold that such a suit [wrongful birth] may besuit for the costs of having to raise and care for an impaired child. We hold that such a suit may be brought under traditional medical-malpractice principles and that the costs recoverable are those arising from the pregnancy and birth of the child. No consequential economic or consequential noneconomic damages may be recovered for the care and rearing of the child.”
The particular details of this case involved a child, Matthew Shirmer, whose disabilities were known from the beginning; it was a chromosomal disorder inherited from the mother. The question that followed was whether the doctors had not detected the test, and thus failed to give the Shirmers a chance to decide whether or not they wanted to keep the child. However, since the disorder itself was inherent to the child, they reverted to the similar logic in Emerson, where the Shirmers retained the child, despite his disorder, and thus lost any claim to additional recovery since they did not seek adoption.
In short, most wrongful birth suits seek forms of compensation associated with the emotional and economic costs of giving birth to a child, but not the subsequent costs of raising a child. The defense for this “limited recovery” rule relies in the ease of its application, its lack of “subjectivity”, and the hard evidence that if a family keeps a child, they must be capable of raising it. While some cases have awarded “full recovery”, which includes the costs of raising a child, and a very strong dissent in favor of full recovery was noted in Emerson, on a whole “limited recovery” has been the major rule.
The last thing to note is that “Limited recovery” does have an area for subjectivity, which lies in the line of Emerson: “sometimes for emotional distress arising out of the unwanted pregnancy.” How does one measure emotional distress? Obviously tort is filled with ways to do it, but this does not create an objective standard for such a claim, merely precedence.
III. The Details of Cramblett v. Midwest Sperm Bank
The sorts of “future emotional and mental damages” that her case emphasizes are precisely the sort of claims that have been dismissed under the presumption that if such costs were not born out by the benefit of having the child, then the couple would have put it up for adoption. Obviously, there is a very different sort of economic calculus going on here, since the question is whether or not the parents ought to be held responsible for the added economic cost of colonial difference.
The second is to note the wide variety of cases often brought up under the title “Wrongful Birth”. Some of them include children who died due early in their lives from genetic problems that ought to have been caught early. Others resulted from poor sterilization techniques. Even others focused specifically on the validity of “limited recovery”. In short, simply putting a defense under “Wrongful Birth” seems about as indicative of the personal stakes involved as one’s first name, or paying a tax. It’s not about the individual feelings or relationship between a mother and her child, it’s about how our legal process, in this day and age, functions as a catch-all for questions surrounding the complicated issues of childbirth, responsibility, and economic assistance for unforeseen complications. This is where I must vehemently disagree with any analysis that takes the legal arguments, and from them extrapolates some interpretation about the particular concerns about this parental couple. Even setting this critique aside, anyone who has dealt with the legal process in any extensive sense will understand that the claims made in this pdf probably had little to do with the particular concerns of the plaintiff. They are set by the lawyer in a way that she thinks will best present the case.
It is in this context that one must read the sections themselves. They certainly measure themselves in relation to the paternalism inherent in colonial logic, and are reflective of both structural and personal connection to it. First, section 22:
“Jennifer bonded with Payton easily, and she and Amanda lover her very much. Even so, Jennifer lives each day with fears, anxieties and uncertainty about her future and Payton’s future. Jennifer admits that she was raised around stereotypical attitudes about people other than those in her all-white environment. Family members, one uncle in particular, speaks openly and derisively about persons of color.”
And section 23:
“Because of this background and upbringing, Jennifer acknowledges her limited cultural competency relative to African Americans, and steep learning curve, particularly in small, homogeneous, Uniontown, which she regards as too racially intolerant.”
And the bread and butter, Section 25:
“One of Jennifer’s biggest fears is the life experiences Payton will undergo, not only in her all-white community, but in her all-white, and often unconsciously insensitive, family. Despite her family’s attempts to accept her homosexuality, they have not been capable of truly embracing Jennifer for who she is. They do not converse with her about her gender preference, and encourage her not to ‘look different,’ signaling their disapproval of her lesbianism.”
“Jennifer’s stress and anxiety intensify when she envisions Payton entering an all-white school. Ironically, Jennifer and Amanda moved to Uniontown from racially diverse Akron, because the schools were better and to be closer to family. Jennifer is well aware of the child psychology research and literature correlating intolerance and racism with reduced academic psychological well-being of biracial children.”
This all leads to her big claim, Section 27:
“Based upon the aforementioned facts and circumstances, all of Jennifer’s therapists and experts agree that for her psychological and parental well-being, she must relocate to a racially diverse community with good schools.”
Oh fine, I’m on a roll, here are the other claims, Section 31:
“As a direct and proximate result of Defendant’s breaches of duty, Jennifer Cramblett has suffered personal injuries, medical expense, pain, suffering emotional distress, and other economic and non-economic losses, and will do so in the future.”
A couple of things jump out. Ms. Cramblett’s claims to compensation seem to rest on the particulars of Peyton’s racial identity and how this will inevitable make life emotionally and economically harder on both of her parents. Another section that I did not cite stated that Ms. Cramblett actually had to venture out of Uniontown into a “black neighborhood” in which Peyton could have a good haircut, but where Jennifer was “not overtly welcome.” These are claims that are based post birth and throughout the undefined “future”, but seem to imply so long as Peyton and her parents will have to deal with the problems of being surrounded by intolerance. In short, this is a suit about reparations for present racial injustice.
The plaintiffs are seeking compensation for dealing with the problems that minorities engage with on a day-to-day basis. Most of the claims about “fears, anxieties, and uncertainty” could be applied more broadly, say, to a group of individuals who have become target practice throughout the country for the nation’s police forces. They could equally be applied to another group of people whose very existence based on their identity becomes objectified, sexualized and colonized by the age of 14. But the plaintiffs aren’t seeking compensation for the overall nature of society. Rather, they are seeking compensation because they will specifically have to deal with this, owing to the fact that they were unable to terminate a pregnancy that would inevitably enjoin them with the neo-colonial aspects of race relations in America. Specifically speaking, rather than attempting a reformation of the system on a whole—on a personal or structural level—they are content with being financed so that their own family can succeed within it.
IV. Individuals and Structures
With this perspective, we can offer substantive critique about the claims made in this system: the fact that this case has received attention, and is even being considered as a serious claim is because it participates in a long-standing tradition of forcing white perspectives to change and adjust themselves based on a newfound, personal connection to racial hierarchy. It is, in short, an exercise in privilege, since we all know a number of African Americans, Latinos, South Asians, and East Asians, none of whom would receive a serious audience in the American legal system on the grounds that they have and will suffer emotional distress, as well as economic and non-economic losses. One needs to look no further than the early 20th century for a series of prominent economic losses sustained on the basis of race, for which no justice has been given. This is at the heart of TNC’s discussion about reparations: little of the issue has to do with slavery or historical instances of oppression themselves, it is focused on how these historical instances propagate themselves in the present.
Where I personally depart is attempting to figure out the role of hierarchy re-producing itself. In the first section, I gave a brief example how the transformative elements of power can translate between differing relationships. In this, men of color can still have problematic views on feminism, while white women can still actively enable the suppression of women of color. Here, I’d like to suggest the relationship between individual and structure is not as straightforward as the former reforming the latter. If we follow the logic set out by other perspectives on this case, the role of fighting structural problems falls on the individual level. It becomes the mission of every individual to combat forms of structural oppression on a day-to-day basis. Proponents of this logic would probably advocate for this couple to engage directly with their community and with their families on the issue of racial awareness and minority status more broadly.
Perhaps their position as white, amongst a community of white people means this is more plausible a suggestion than others like it. However, I suggest it will hopelessly fail, and I’d like to believe it’s not because I’m cynical about the situation. I suggest it fails because this sort of logic ironically centralizes the emphasis of the neoliberal conception of the individual as a unit from which we derive social change. Peer-to-peer exchanges sometimes work. They sometimes force our friends and families to see things in new lights. While I have no actual data on the success rates of individuals changing people’s minds, I would like to propose a tentative experiment: imagine existing in a community or neighborhood, in which race has been a nonissue. By this, I don’t mean that all members are well-adjusted and understood on race in the 21st century, I mean they have the good fortune of being in socioeconomic statuses and skin colors where they need not think about race. The sorts of histories, political philosophies, statistical studies, and perhaps even medical knowledge such a community would have are limited to the presumption of race as nonissue. It need not be an important theme in the production of knowledge, because it’s a nonissue.
Now imagine if, all of the sudden, race became an issue in regards to a single community member. What could we consider this community’s reaction to be? It would probably depend on the specifics of the issue, but I’d suggest that generations and years of investment in the position of nonissue would take an equally long period of time to eliminate it. This isn’t because the people in such a town are evil, or because they refuse to acknowledge the reality of a situation, it would be because they’ve been systemically informed about the world from one perspective. It’s a similar argument to the ones espoused by Arendt in reference to the Shoah, summarized brilliantly by Darin Strauss: “Again, Arendt was perhaps the first to write coherently about the trouble communities have in seeing the world as being something other than what they have been conditioned to see—without any kind of cultural empathy.” This is what we refer to as a racial structure. It is often easier to cast out individuals with different experiences than it is assimilating those experiences into the general narrative.
Thus, the question as I have tried to motivate it, is focused not so much on whether a white couple is running away from their responsibility as allies to revolutionize a town, but their responsibilities as parents to a child whose own engagement in both matrices of gender and race are inevitably going to lead her to a number of days in which her identity becomes a very long question. Having spent a year in the California Public School system, I can tell you the question of residing in a nearly all-white residence of education is a serious one. Even if the same questions of “belonging” are asked, when asked from the margins, they seem inherently more credible.
This is also important in delineating the responsibility of an individual to undertake the reformation of a structure. I think it is a fair assessment that one of the primary roles an ally can play in the movement forward is using their voices to amplify the stories and lives of marginalized groups. This is certainly not an assessment agreed to by all marginalized groups, but it is something that comes up as an answer when relations appear to be in crisis in some form or another. I would never expect a person of color, or an LGBTQ identified individual, or a woman to solely identify themselves based on the marginality of their experience, and spend all waking hours fighting the system. And while it is seductive to presume that the individuals on the opposite end of the table have the power to shift structure with a slight of hand, the reality is a little more complicated. Namely, that neither us, nor them have the ability to adjust or shift historical realities. The brilliance behind the neoliberal politics of capital is not that it imposes a new reality upon us. Rather, it uses existing forms of cultural difference to deposit structural barriers between us and them. As such, we follow the logic of capital to which we are bound, rather than critically analyzing the relationship between the “us” and “them” and how they have come to be.
(Note: I know here it seems like I’m essentializing the experience of race and other identities as one of capital. I’m not, I remain firmly opposed to the “Traditional Left” in this regard. I can’t go into this right now, but I will eventually, and it will make sense how one can read a “logic of capital” and still hold that such differences would exist without it.)
V. Final Words
I wanted to end on some hopeful message, but that seems sort of weak in consideration of the subject matter. The reality of the situation is that, even in the best case scenario, this is what we can say:
Our legal system is ill-equipped to deal with races beyond white. Even beyond this case, we only need to look at the color behind bars to really get a hint of this phenomenon. Our legal system also really fails to deal with questions of violence and control against disabled communities.
Our support systems—including education—generally fail at creating citizens and spaces in which we might effectively be capable of pluralizing environments on a peer-to-peer basis.
There is still a clear distinction between white and black as social categories, simply beyond the self-identification aspect, and to have them mix is still tantamount to existential crisis in the 21st century.
The exchange of racial ideology that happened in this town was a closed circuit, and it was only shattered when circumstances forced the adjustment. That is to say, race-thinking is so deeply embedded in our structures that it takes one of the most personal connections to begin its deconstruction in this particular regard.
That power in itself is still a question that needs a resolution. It is not enough to advocate for the politics of difference or identity, we must reach through them and grasp at what it means to use power in a responsible manner rather than simply continuing to re-create systems of hierarchy.
None of these are really hopeful messages. It’s sort of like going to the doctor for a routine check-up and being told there’s an inoperable tumor in your brain. Although if you’ve been here before, I hope this isn’t a huge surprise.
Still, some people might be wondering well gee how can I fix this?! And maybe this is the place to offer some general solutions to the specific problems this case has highlighted.
The irony is that, if you’re thinking about trying to fix it, you’re probably somewhere on a spectrum that needs little prodding from me. The fact that a majority of white people now believe they experience more racism than black people continually frightens me, especially since questions of colonial rule as a present construction are still, for some reason, up for debate (How Vivek Chibber cannot differentiate between “capital” and “capitalism”, yet still call himself a Marxist is beyond me, but whatever.)
To counteract this general apathy, I’ll focus briefly on a smaller question that might be explored more later, and that is the value of activism as both an academic and cultural exercise. It feels like we live in an age of disillusion, where we see movements like Occupy Wall Street, and if we are not on the front lines, then we generally distance ourselves from their politics. Even further, the politics of activism come under critique themselves. It seems as though the concept of the campus protest, and student revolts have become passé, as the 20th century came to pass without the entirety of American society breaking down. The first generation of activists have grown up, and in their wake, many of the first issues addressed seem like they had been resolved. Women began to run for political offices, African Americans could attend the same schools as white children, reparations for Japanese internment were paid, and now even states like Oklahoma appear to be getting ready for gay marriage. We look at these victories, pat ourselves on the back, and congratulate ourselves on a job well done in moving the Zeitgeist of history forward.
Unfortunately, along with our zeal for the frontlines of barricades, we seem to have also discarded our ability to think critically. The whole point in the rise of the liberation movements was not to internalize the problematic doctrines that the state had taught us, but to move forward with the positivist project of constructing a new set of ideologies. Pedantics aside, this editor’s article in Jacobin summarizes our current state perfectly: “Yet even where these campaigns achieve victories and make tangible gains, the balance of forces and the tenor of discourse—particularly when it comes to questions of political economy—continue to move rightward.”
I would also argue the crux of the problem comes in their very next paragraph: “This issue of Jacobin doesn’t offer a definitive answer. But we do suggest some broad principles to inform our thinking and practice as we embark on a long process of reorganization and reconstruction.”
The problem isn’t so much the process of reorganization and reconstruction. Rather, it is an acceptance that our positions are emphatically set until the next cycle of protests break out. We do not need to wait until Michael Brown is shot in order to question why on earth the police have become steadily militarized over the past decade. We shouldn’t have to wait for a student at Columbia to carry her mattress around before believing victims of sexual assault who step forward. If we are meant to weigh and consider our positions, at what point will the prison industrial complex receive the same weight and consideration as whether or not we intervene in Syria and Iraq?
The problem with reading present-day critiques of cases like Wrongful Birth is that our faith in traditional categories will often outweigh our ability to think clearly upon issues. And without sounding like too much of an optimist, the success of colonial rule is predicated on the abilities of people to never transgress beyond the particulars of the categories of which they’ve grown accustomed. Activism was, in part, a means by which the traditional order was held accountable. If one wishes to fix the continual problems that are outlined, perhaps a stronger commitment to the activist tradition would not go awry.