One Big Happy Family

by David Nieporent on March 23, 2007

No, this case isn’t going to get messy: in 2004, a Long Island couple went to a fertility clinic to help them get pregnant with a biological child. Apparently, the clinic botched the procedure by using the wrong sperm (Oops!); the couple figured it out when they noticed that the child was black and they weren’t.

So they sued the clinic for malpractice and infliction of emotional distress. (Just for good measure, they sued their obstetrician, who had nothing whatsoever to do with the actual fertilization; the court dismissed that claim. Gee, I wonder why medical malpractice insurance rates are so high.) The court rejected the emotional distress claim, ruling that (as most courts do) a baby being born is not an injury to the parents, but it allowed the malpractice claim to proceed.

Speaking of emotional distress, the judge handling the case quoted the parents as saying things every child wants to hear from her parents:

“[W]e are reminded of this terrible mistake each and every time we look at her.”

and

“We are conscious of and distressed by this mistake each and every time we appear in public.”


I haven’t yet found any quotes saying that it’s not about the money, but I did note these gems:

  • “My clients never sought publicity for this case,” their attorney, Howard J. Stern, said in a brief statement. “This is obviously a very sensitive matter. The family would like to maintain what little privacy they have left.” (Newsday)

  • “‘We fear that our daughter will be the object of scorn and ridicule by other children, both in school and as she grows up,’ they said.” (Daily News)
  • “The family is so distraught that they have not even told many of their relatives about the situation. The Andrews fear the natural father may try to come forward and claim rights to the girl, the suit says.” New York Post

Uh, yeah. Clearly, those were their top concerns.

Obviously (assuming the allegations are true), one can’t even begin to defend the clinic’s incompetence; a lawsuit is legally justified. But if one’s concern is really about privacy, is really about whether their daughter is going to be subject to ridicule, is really about whether the natural father might try to claim the girl, then I’m not sure litigation is the way to go. On the other hand, if one’s primary concern is money…

{ 17 comments }

1 Rachel 03.23.07 at 8:34 am

I read about this lawsuit and one thing that made me angry was the fact that both parents were saying that the baby essentially wasn’t their child. It may not be the dad’s biological child, but it is the mom’s and I don’t believe that her feelings toward the girl should change just because the father isn’t her husband. It’s still her baby. She carried her for 9 months as the baby grew inside her. The parentage of the child shouldn’t affect her love. I understand that the clinic made a mistake, but I feel it’s wrong for the parents to be saying this stuff about the girl. Just wait until she’s old enough to Google herself.

2 Ted 03.23.07 at 9:23 am

I have absolutely no problem with the lawsuit if the clinic failed to settle for a reasonable sum off the bat.

I do have a problem with the publicity-seeking. The Andrews could have pursued this suit as N.A. & T.A. or John and Mary Doe. Did the media get a hold of this because of the judge’s opinion, or did the Andrews’ lawyer trumpet the decision for his own selfishness? (The New York Post has a family Christmas card, which surely wasn’t in the judicial opinion.)

3 SPO 03.23.07 at 9:29 am

I am afraid I have to disagree with the slant of the post. What’s the rule, someone can harm you egregiously, and because the lawsuit is newsworthy, it shouldn’t have been brought. Perhaps the fertility clinic and the insurance company should have a heart. Liability is clear, so why not simply offer policy limits to spare the family?

Moreover, the harm is very very deep. The drive on the part of the father to have his own children is very very deep, it is innate and the family is only human for being disappointed.

I feel that this post is pretty unfair to the parents here.

And, by the way, there is no way in hell that the biological father should get to claim visitation. Where there are two innocent parties, courts should leave the parties where it finds them.

4 Todd Rogers 03.23.07 at 10:01 am

These parents’ comments are repulsive. The comments being necessary for the suit (or at least influental) should be enough deterrance for any would-be litigant-parent to want to not move forward. Fast-forward sixteen years, “Mom, did you really tell a jury that the very site of me caused you emotional distress?” “Yes, dear, now where are the keys to my Lexus?”

5 nevins 03.23.07 at 10:15 am

I haven’t found confirmation that the alleged mistake occurred in the lab. Sure the DNA concludes that there was a second sperm donor, but unless that matches a sample in the lab perhaps we should look to a more conventional source of ‘sperm donation’ practiced widely by primitive peoples throughout history.

6 jon 03.23.07 at 10:17 am

I thnk you are a little quick with your scorn.

The mother does not know the background of the bio. father. The baby may be pre-diposed to physical/ mental problems. etc..

What if the marriage breaks up because the husband can not deal with the fact that he is raising another person’s child. What if the mother devlops a mental condition of feeling she was raped and becomes depressed?

Why isn’t the husband/wife deserving of support for raising a child that is not the product of the two? Should their next child suffer financial harm because of the first?

I am not a fan of frivolous suits. I read your site. But this one deserves more thought.

7 Avi 03.23.07 at 10:22 am

I agree that the parents are saying terrible things about that poor little baby, and they should be ashamed. The fertility clinic should clearly be at some sort of risk. Why the sued their OB GYN I have no idea (perhaps she referred the parents to the clinic?). That’s just lame.

I can imagine the parents are genuinely distraught about this. The fertility clinic process is mentally and physically grueling and it must have been a tremendous blow to them to have had it turn out the way it did. Still, a baby is a baby, and the mom in this case is still that baby’s mother. I can’t imagine why she would speak of her infant in such derogatory terms; it’s beyond disgusting. After the 9 months of carrying my own baby and feeling her grow, I would have taken on the world to protect and defend my her, regardless of what she looked like or how she appeared to others.

8 Yoda 03.23.07 at 10:38 am

I have no problems with the lawsuit, but like Rachel, in the way that the parents and their legal representation have constructed their case.

What they do not seem to realize is that at one point this child will eventually find out and then what?

I guess from the example of the child’s parents, she’ll sue.

FWIW: I would love to hear the judge ask “despite the obvious mistake, why have you not given up the child for adoption, since you claim that the child’s very existance causes you harm and emotional distress to such a great degree.” Sometimes you have to get past the legal posturing by calling it for what it is.

I’d go after this on the technical merits of the case, that’s more than enough to do without looking too abominable

9 Ryan Frank 03.23.07 at 11:24 am

Hrmm, my 2 cents.

The clinic made a mistake that never should be made.

These ‘parents’ suck. I hope to God the kid never reads this stuff when they grow up.

10 David Caskey,MD 03.23.07 at 12:50 pm

I wonder how much of their distress is directed to the fact the child is black. Would they have been less distressed if the child were white?? I would think that racism is alive and well in the North rather than in the South were we usually get the blame.

11 spo 03.23.07 at 2:37 pm

David Caskey:

That’s some nasty speculation. Raising a bi-racial child is more than just the parents’ reaction–its others’ reactions too.

Let’s not forget who the victims are here. And no, offering the kid up for an adoption is a silly argument as well.

12 Christopher Taylor 03.23.07 at 2:43 pm

Mommy isn’t exactly white, she’s Dominican which means in her genetic code there’s several tags that could have theoretically resulted in a much darker baby. This makes me wonder why they reacted so, and like Dr Caskey, if they’d have minded if the baby was whiter.

And like Nevins, I wonder about this baby’s origins. Was it a mistake at the fertility clinic? Maybe it was, and maybe it was mommy’s mistake and this is a way of covering it up while profiting? Maybe I’m too cynical.

13 Kat 03.23.07 at 3:04 pm

Seems to me that this is a lesson in why set penalties or fines can be a better response to some types of misconduct. That would put the emphasis on the error. Having a process whereby parents get more money the more they can establish that the existence makes them miserable seems to encourage activities that go against the very heart of what most of us consider the parent/child relationship.

14 Ted 03.24.07 at 9:13 pm

Some good comments at Kevin MD. This one had a different perspective:

“I can’t believe that so many people will line up to criticise this family. They have a legitimate grievance and a huge one! If I paid a clinic to provide invitro fertilisation services of my sperm and my wife’s egg, and ended up a public [cuckold] by raising not just another man’s child but a child that is obviously so as it is of another race, I would have a HUGE problem with that and so would the vast majority of reasonable, compassionate and non-racist people.

It is not a problem easily solved by dropping the kid off at an orphanage or adoption agency. Mom carried it for 9 months and it is her biological child. Dad bonded to it while in utero before he knew that he had paid to get cuckolded and even if he didn’t, can’t ignore his wife’s feelings. Yet he can’t just decide to ignore the obvious fact that their famliy, including the child, will be dealing with this for generations. Also, note that mixed race children are very very hard for adoption agencies to place. That says something about the extra social burden this child will face. The lawsuit will not let on to her that her conception is a mistake–that will soon be obvious to her regardless. No matter how much they love this child and work to do right by her, they have been seriously wronged.

It does not matter if anyone else thinks that they ought to be just as happy with a healthy child who is not their own. That is not what they set out to do or paid for, and that is not a normal risk of the procedure. Res ipsa loquitur. The only question is the amount of the damages.”

15 Frank 03.26.07 at 7:22 am

Word to the mother: Grow a pair. Withdraw “everything” but the malpractice against the lab.

Word to the father: Be a man, do the right thing. Love the child unconditionally, immediately, and don’t let the thought of it’s paternity ever affect any of your decisions. You’re married. It’s your wife’s child. Deal or divorce.

If any of the above conditions cannot be met, please put the child up for adoption so it at least stands a chance of having a good life.

Frank

16 Deoxy 03.26.07 at 11:10 am

“That’s some nasty speculation. Raising a bi-racial child is more than just the parents’ reaction–its others’ reactions too.”

And yet, as you yourself pointed out (“it’s others’ reactions, too.”), it’s spot on. “mixed race” people get it the worst, because racists from eithr side (and there are plenty on ALL sides) hate them.

Considering the way genetics work (and not having seen a picture), it’s quit possibl that is it theirs – genetic testing is in order, and in fact, if it were to come back postive (they are the parents), then they have been loudly slandering the clinic.

Also, there is the possibility listed above (the mother’s mistake, not the clinic).

It does seem MOST likely (and by a good margin) that the clinic screwed up, though. If so, damages should indeed be assesed, but the parents are acting like total [expletives].

And I THINK that “sperm donor” fathers hav been addressed in law and have no rights… wouldn’t stop a lawsuit, though.

17 Dana 03.27.07 at 12:19 am

Wow! In my mind this is clearly a violation of the family’s biological line. I can’t believe a judge would say that a child is not an injury-normally a child would not be but a child that is a result of a mix-up at a clinic and is not biologically the father’s. I can’t imagine having a baby that I think is going to be my husband’s and finding out that it is not his. They are forced to deal with this for the rest of their lives. I hope the clinic gets put out of business.

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