The March 22 New York Post offered a fascinating study in the contradictions of our culture. The top half of the front page was consumed by “a stunning mother-child portrait” of Angelina Jolie with her newest adopted child, or as the Post put it, her “Viet man.” The lower half of the page was given over to a more lurid headline (“Baby Bungle: White Folks’ Black Child”) trumpeting “a Park Avenue fertility clinic’s blunder” that “left a family devastated–after a black baby was born to a Hispanic woman and her white husband.”
The story about Jolie’s magical mothering of her rainbow brood was a fairy tale of happily ever after. The bungled baby story, meanwhile, was considerably less heartwarming: Long Islanders Nancy and Thomas Andrews had trouble conceiving after the birth of their first daughter. They employed in vitro fertilization and baby Jessica was born. Jessica is darker skinned than either of the Andrewses, a condition their obstetrician initially called an “abnormality.” She’ll “lighten up,” said that good doctor. Subsequent paternity tests showed that Nancy’s egg was fertilized by sperm other than Tom’s. The couple has sued.
If this were the end, the story might simply fall within the growing body of other technological mix-ups resulting in what are sometimes called “wrongful birth” suits, for lost eggs, failed vasectomies and so on. There is a legally recognized expectation that a certain standard of care will be observed in the handling of genetic material. There are ethical difficulties with any of these cases. Just to start with, it’s a bit of a conundrum to call the birth of a healthy child “wrongful.” Therefore, courts tend to be conservative in framing monetary damages, lest they be understood as a property interest in perfection. Hence, awarding the costs of raising an unplanned child resulting from medical malfeasance is obviously less troubling than awarding damages for “the pain and suffering” of parenting a child who was “unwanted.” Indeed, in the Andrews case, a judge permitted the malpractice claim to go forward but threw out the claim for the parents’ mental distress.
What’s distinctive about the Andrews case is that the parents also tried to cite (also without success) Jessica’s pain and suffering for having to endure life as a black person. The Andrewses expressed concern that Jessica “may be subjected to physical and emotional illness as a result of not being the same race as her parents and siblings.” They are “distressed” that she is “not even the same race, nationality, color…as they are.” They describe Jessica’s conception as a “mishap” so “unimaginable” that they have not told many of their relatives. (Telling the tabloids all about it must have come easier.) “We fear that our daughter will be the object of scorn and ridicule by other children,” the couple said, because Jessica has “characteristics more typical of African or African-American descent.” So “while we love Baby Jessica as our own, we are reminded of this terrible mistake each and every time we look at her…each and every time we appear in public.”