Race as disability: an update on fertility clinic mixup case
by guest contributor Kay Olson, originally published at The Gimp Parade
Back in March the story of the Andrews family of Long Island came to public attention. The NY Daily News announced “What a mess, baby: Parents say fertility clinic botched in-vitro & girl’s got the wrong dad“.
[Note from Carmen: Racialicious covered it too.]
The story came to public notice in March because a judge ruled the couple can precede with their medical malpractice lawsuit but disallowed the claims of mental suffering — the parents’ suffering and baby Jessica’s suffering for being a different race than her parents. There’s a lot to unpack here and The Nation’s Patricia Williams took a stab at it:
What’s distinctive about the Andrews case is that the parents… tried to cite… 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.”
Since the claim of mental distress of their child hinges on appearance and public perceptions of skin color, Williams comments on the family’s photo:
The picture underscores the embedded cultural oddities of this case, the invisibly shifting boundaries of how we see race, extend intimacy, name “difference.” According to the Post, Mrs. Andrews is “Hispanic” and apparently, by the paper’s calculations, one Hispanic woman plus one white man equals “a white pair.” The mother is “a light-skinned native of the Dominican Republic,” seeming to indicate that while she may not be “white,” she’s also not “black.” Each narrative implies that if the correct sperm had been used, the Andrewses would have been guaranteed a lighter-skinned child. But as most Dominicans trace their heritage to some mixture of African slaves, indigenous islanders and European settlers, and as dark skin color is a dominant trait, it could be that the true sperm donor is as “white” as Mr. Andrews. But that possibility is exiled from the word boxes that contain this child. Not only is Jessica viewed as being of a race apart from either of her parents; she is even designated a different nationality–this latter most startling for its blood-line configuration of citizenship itself.
Paul Butler at BlackProf discusses the race issue as well.
If I understand the legal situation correctly, the parents’ claim of mental suffering is essentially a “wrongful conception” or “wrongful birth” claim and their suit on behalf of Baby Jessica’s mental suffering is a “wrongful life” claim. New York state, where the case resides, has precedence in these situations, which Manhattan Supreme Court Justice Sheila Abdus-Salaam cited in her ruling. Regarding the “wrongful birth” claim:
By logical extension of the principles enunciated by the courts in New York that the birth of an unwanted but otherwise healthy and normal child does not constitute an injury to the child’s parents, and that even parents of a child with a serious disease cannot recover for emotional injury for the birth of that child, plaintiffs in this case cannot recover for mental distress arising from having a child who is not Mr. Andrews’ biological offspring…. Plaintiffs cannot recover damages based upon their claim that they were deprived of the opportunity to have a child of their own genetic makeup. The Court of Appeals has rejected as too speculative a claim that is ” . . . based essentially on “wrongful nonbirth”, the deprivation of an opportunity by a woman to have a child by her husband.
While these types of lawsuits were originally an additional claim for malpractice issues like failed vasectomies or lack of medical information provided by doctors, much of the case law centers around the distinction of whether or not a child with disabilities is involved. And, of course, that determination hinges on the ability to diagnose that there’s “something wrong” with a child at the time a suit is filed. In the Andrewses case, if Jessica had not been perceived as looking physically different from her parents, her genetic differences (in this case, the fact that her father was not a biological parent) may have gone forever unnoticed.
And because the wrongful life suit (rejected by the judge) on Jessica’s behalf claims she will suffer physical and emotional stress from having darker skin than her family, race is made here to be a kind of disability. Disability, after all, is not only about actual impairments, but also perceived impairments — the ADA recognizes this fact of the social stigma of disability.
While the specific circumstances (of botched reproductive technology leading to wrongful birth and life claims due to skin color) may be new, positing race or gender or ethnicity as a disability is not historically new. Disability is and has frequently been used as a method of demonizing or oppressing other minority populations. That goes back at least as far as Aristotle claiming that women are mutilated (read impaired) males. The medical definition of “hysteria” linked femaleness with mental instability. Irrespective of diagnosed intellectual impairments, black male schoolchildren in U.S. public schools are much more likely than other kids to be placed in special ed classes or considered behavioral problems. There are innumerable examples of oppressed minority identities having their identifying biological difference labelled as a disabling condition.
But culturally, we find it challenging to look at the dynamic from the other direction. Sandel’s book (discussed briefly in an earlier, May 26, 2007, post) on the ethics of striving for genetic perfection asks:
Is it wrong to make a child deaf by design? If so, what makes it wrong — the deafness or the design? Suppose, for the sake of argument, that deafness is not a disability but a distinctive identity. Is there still something wrong with the idea of parents picking and choosing the kind of child they will have? Or do parents do that all the time, in their choice of mate and, these days, in their use of new reproductive technologies?
What if, with an understanding of how elusive and intersecting categories of ability and identity are, that paragraph were rewritten to more closely discuss the Andrewses court case?
Is it wrong to make a child dark-skinned by design? If so, what makes it wrong — the dark skin or the design? Suppose, for the sake of argument, that dark skin is not a disability but a distinctive identity. Is there still something wrong with the idea of parents picking and choosing the kind of child they will have? Or do parents do that all the time, in their choice of mate and, these days, in their use of new reproductive technologies?
Intersections between identities are never perfect, and matching women’s oppression to racial oppression to disability oppression is never a perfect fit of history and experience, but the Andrewses case does beg the above questions about race. The references to “dark skin” could easily be changed to “light skin” to reflect the family’s presumption of genetic whiteness, but the “problem” of skin color difference remains.
I confess that I don’t know exactly how this court case illuminates the debates over prenatal screening and genetic engineering to avoid children with disabilities. But they are fundamentally related.
Cross-posted at Echidne of the Snakes
Carmen Van Kerckhove is co-founder and president of
Wendi Muse wrote:
i remember when this controvery first popped up on the blog headlines…i was infuriated. . . mainly because while i understood that my skin color could lead to obstacles in a racist society, if anything, i could learn to grow from that, to become a stronger human being. . . i didn’t see my blackness as a disability or a tragedy like these parents did.
i wonder how does this family feel about transracial/ethnic/national adoption. are those kids, who look different from their parents, going to grow up messed up? definitely not if their parents work hard to make sure that they love themselves for who they are. . . i don’t know if this family is so prepared to do that… which saddens me a ton.
another first reaction i had was: wow, that woman looks like my mom. my mother is black, in that one drop rule social sense, and identifies as such, but she and almost her entirely family (first and extended) happen to be very light. in most parts of the caribbean and latin america, her self-asserted blackness would probably be misconstrued as social consciousness more than anything. she nor the rest of her family would be called “black”, negra, preta, africana or anything of that sort unless they chose to assert their identity in that way. SO this woman’s absolute denial that the children looked the way they did because of her own genetic makeup is. . . well. . . quite frankly evidence of very different socially constructed ideas of race. we may not exactly love them, but i guess i *sort of* understand where she is coming from. she may have been raised to identify as white. . . and if that is the norm where is from, so be it. . . it’s probably just as weird for her to be considered black/part black as it would be for some members of my family to be called another race in another part of the world.
that doesn’t excuse her behavior in any way, but it’s something that we should consider. . .
i hope that these girls can grow up in a race/color-positive environment in which they learn to love themselves and not to think they are just some sort of mistake…but there is part of me that fears that the parents won’t work as hard to do that…i mean they don’t really seem to accept them as their own kids…and it’s been a few years…these girls aren’t newborns anymore
Posted 14 Jun 2007 at 11:11 am ¶
berrybrowne wrote:
this might just be a case where they should just let angelina jolie adopt their daughter…
Posted 14 Jun 2007 at 12:32 pm ¶
Wendi Muse wrote:
oops…controversy*
Posted 14 Jun 2007 at 1:56 pm ¶
Changeseeker wrote:
I’ve heard stories about very dark-skinned people from the Dominican Republic who still considered themselves “White” through their blood line somehow. As far as I’m concerned, not only should this couple not be awarded a cash payment, but that poor child should be taken away from them before they do more damage than they already have. I think the way they talk about “their daughter” is psychologically and emotionally abusive and those who are supposed to be concerned with a child’s welfare need to take note accordingly.
Posted 14 Jun 2007 at 2:24 pm ¶
Colleen wrote:
From everything I’ve seen/read about race in the DR, it is in one sad state. I feel terrible for that poor little girl, who really doesn’t look that different from anyone in her family.
It must be an awful, sad existence to be a parent in denial who looks at their beautiful daughter and thinks of a mistake.
Posted 14 Jun 2007 at 3:56 pm ¶
Jeremy Pierce wrote:
A lot of people are confused about what nationality even is. I get searches coming to my blog fairly regularly asking what nationality Beyonce or some other person is (which for Beyonce is of course American; she’s a U.S. citizen and always has been). They really just want to know something about her ancestry.
Posted 14 Jun 2007 at 4:41 pm ¶
Jeremy Pierce wrote:
Does the DR have a reverse one-drop rule like Haiti, according to which any white ancestry makes one white? I didn’t know there was anywhere else with that particular version of the one-drop rule (although you do find a cultural version of it in the U.S. with people who aren’t culturally “black enough” being deemed “not really black”).
Posted 14 Jun 2007 at 4:43 pm ¶
Meg wrote:
>They are “distressed” that she is “not even the same race, nationality, color…as they are.”
i”ve read this in a bit of a rush and it may be addressed in the article, but how is it that the daughter is not the same “nationality” of the parents? Someone took the stupid pills when they wrote that or are using a more strict definition of nationality (maybe mixed up with ethnic identity?) than me: nationality = country?citizenship?americans?. The only thing (when talking race/ethinicity labels) my mixed race family actually has in common is our nationality because we were either born into it or chose to migrate.
most likely this kid will have more difficulties because of her parents’ attitudes than due to anything else.
Posted 14 Jun 2007 at 6:57 pm ¶
Jeffrey wrote:
How exactly is she a different nationality? I always thought that if you’re born and live in America then you’re nationality is American. This is what I get for being raised in a mostly white neighborhood, I guess.
Posted 14 Jun 2007 at 8:45 pm ¶
evita wrote:
Race is social category, not a biological fact. People should be confused by it because its made up and in kind evolves to mean whatever the mainstream bends to this year.
I’m sad that her parents take issue with the child because of her color. I hope the courts offer the parents counseling to they can get past their colorism.
Posted 14 Jun 2007 at 8:59 pm ¶
Carmen Van Kerckhove wrote:
Yeah the “nationality” thing is one of my pet peeves. I feel like people ask, “what’s your nationality” because they feel it sounds less harsh than “what’s your race?”
But as everyone here points out, nationality refers to your citizenship, not your ethnicity or race.
Posted 14 Jun 2007 at 9:12 pm ¶
justin wrote:
Nationality also relates or conflates with sovereignty, especially for indigenous groups/ sovereign peoples. The kind of heated nationalism which is involved in that is much closer to family dynamics.
Indigenous people (of colour) are also constantly expected to move on from traumatic ‘seminal’ moments without compensation.
Posted 15 Jun 2007 at 10:20 am ¶
deb wrote:
Seeing this “update” I’m reminded of the onedroprule.org website where there’s a forum dedicated to “Molecular Anthropology and Genetics”. The sticky’s alone are pretty interesting. I especially like the “Black Parents w/White Kids” thread.
Posted 15 Jun 2007 at 2:34 pm ¶
Meg wrote:
Continuing with the ‘nationality’ thing – “pet peeve” is a polite way of characterising my attitude to it’s (mis)use. Don’t want to drag the thread off-topic, but if media in general were more careful with how they used these words (and not have race/ethnicity/nationality as synonyms of each other) it might be a little easier to change some ingrained attitudes and reduce the persistent message to minorities that they don’t belong to [insert country].
Posted 16 Jun 2007 at 8:13 pm ¶
Fiqah wrote:
The original post is worth reviewing. These two comments were posted there. Brava to Paz!
armando wrote:
I am a cuban of pure spanish blood. Most cubans in the US are of pure spanish blood (andy garcia, daisy fuentes, cameron diaz) and we get a great rise out of reminding dominicans and puerto ricans of their black ancestry. They get really upset. heh heh heh Its so pathetic when i see dominicans talk about spain as the mother country..i tel them “dude…you are the product of some horny spanish sailor and his black concubine”
Posted 06 May 2007 at 12:00 pm ¶
Paz wrote:
This is late, but I am compelled to respond to one of these comments. ARMANDO: I’m a proud third generation Cuban American of African, Indian and Spanish descent, as I’m quick to point out to anybody who mistakes me for Italian here in NYC. My family, like many Cuban families, is a range of shades and features. Unlike many Cuban families, my sisters and I learned growing up that to be Cuban is to embrace our true history, not some fairy tale about “pure” Castilian ancestry. The culture of those captive Africans who were brought to the New World is an integral component of all modern Caribbean culture, and this is especially true in Cuba. Cuba’s African heritage should be a point of pride, and not treated as something to be mocked, hidden, denied or “bred out.”
Posted 14 Jun 2007 at 9:01 am ¶
Posted 18 Jun 2007 at 8:28 am ¶
Eme wrote:
Do you think if Jessica had turned out really, really light (as in Nordic-looking, which neither of her parents are) that they would have taken this “mishap” to court? Or just figured they “got lucky?”
Posted 20 Jun 2007 at 8:38 pm ¶
TierListE wrote:
*snort* I’m fearing that they would have been estatic. Or at least the mom, if the child came out extra light, and either way I’m certain they wouldn’t've questioned it.
Though I can feel for them about not having that man’s biological child I don’t know why it has to go further than that; their concern of the kid’s color in turn concerns me. I know society won’t find it that big of a deal, but ideally I think Social Services should check in on that family regularly to make sure the browner child is not being emotionally belittled or outcasted.
Posted 22 Jun 2007 at 6:48 pm ¶
Mirlande wrote:
Dominicans are Eastern Haitians because DR is on the eastern part of Hispaniola (now Haiti)but they prefer to be Spanish. They are as confused as the creole speaking Western Haitians who prefer to be French
It seems like everyone on the whole Island of Hispaniola (now Haiti and Dominican republic) is running away from their african Identity.
This is a big joke but my heart goes out to the child.
Posted 28 Jun 2007 at 9:43 pm ¶
Lauren wrote:
What I wonder is if this is a case for Social Services. Is there anyway where this child can be removed from this family for her own well being. Because I can already forsee them harming or mistreating this little girl based on her skintone. If her mother is hates her African heritage that much and her father is that big of a bigot, then this child needs to be placed with someone who loves her for her.
Someone jokingly said that Angelina Jolie can adopt her, but this family seriously needs to consider putting this little girl up for adoption. What the hell is the matter with them? As an African American I have faced a lot of racism. But I have never been told that I am “disabled” because of my African heritage. These people are sick
Posted 28 Jun 2007 at 11:50 pm ¶
josh wrote:
They should take this child away from them before they cause to much emotional damage.
Posted 29 Jun 2007 at 12:38 pm ¶
Sara wrote:
Maybe these people need to learn that family is family no matter what color they are.
Love is love, and it’s definitely not black or white.
Idiots, I swear.
Posted 15 Jul 2007 at 9:03 pm ¶
Danyella wrote:
OMG! Just reading the bits & pieces of this story, my heart breaks for this beautiful “black” baby. I’m almost in tears at the thought of what this child must be going through. F* the parents–I’m concerned about this baby. I’m a social worker & if I were living in the state/county they live in, I’d snatch that child based on the claims the parents filed in court. You already know that poor baby is going to experience hell on Earth-not b/c the kids next door, but her own parents putting crazy ideas about who she is into her head. The mother looks like s black woman who’s had her hair straightened! The mother is obviously having an identity crisis of her own, being she’s Domincan & clearly of African ancestry, to even view her child as disabled based on her dark skin. Does this mother not know about basic genetics/biology? They’re random at best. You never know what you’re going to get! If there’s black/African in your ancestry, it will show up sooner or later in some form, feature, hair texture, skin tone, body structure. I wish Hispanic people w/ African ancestry would just embrace their background & stop trying to deny it. This woman married a white man in hopes of lighter children. This is the oldest & stupidest trick in the book. It just goes down to genetics. *sigh* Let me stop b/c this whole story just deeply saddens me.
Posted 18 Aug 2008 at 2:50 pm ¶