What happens when the Sperm Bank makes the WRONG Deposit?

17 October 2014
Published in

By Seema Iyer, Esq.

October 17, 2014

Two lesbians and a black man walk into a sperm bank – sounds like the beginnings of a bad joke.  Unfortunately, it is the true reality for a couple in Ohio who sought to have a white baby by choosing a white male donor until the sperm bank made an irreparable error.

Jennifer Cramblett and Amanda Zinkon, a white couple, went to the Midwest Sperm Bank in the Chicago area and chose donor #380. They picked that donor because his coloring, blond-haired and blue-eyes, is similar to Zinkon.  The goal was obviously to have a baby that resembled them as much as possible.

As you probably figured out, the couple didn’t get donor #380. Instead, Cramblett was inseminated with sperm from donor #330, who was neither blonde hair nor blue eyed. In fact, the donor was actually a black male.  

The couple learned of the clinic’s mistake in the 5th month of the Cramblett’s pregnancy yet still decided to have the child, even if she would bear little resemblance to them physically.

So in 2012 the couple welcomed into the world baby Payton. A healthy baby girl that the couple says they love, “unconditionally.”  End of story, right?

Of course, not. It turns out while the couple was welcoming of Payton, not everyone in the 98 percent white community where they live shared those warm, fuzzy feelings.  (Apparently being a lesbian in the town is fine, as long as you’re a white one.)

Citing fear for the child’s future in an all-white school, the couple now want to move to a more diverse area.  And, as would be expected, the couple did what any red-blooded American would – they sued.

The couple’s lawsuit asks for $50,000 in damages that frankly seems quite reasonable for such a monumental blunder.  To be clear, donor #380 was substituted for donor #330 because a “3” and an “8” look alike when handwritten because Midwest Sperm Bank’s records are HANDWRITTEN.  There is no computer database to hold what is supremely private, personal information - just a bunch of papers probably mis-alphabetized in a file cabinet.

How can this be??? Don’t sperm banks have to abide by certain regulations?  Yes they do.  The U.S. Food and Drug Administration (FDA) started regulating reproductive tissue banks in 2005.  The FDA rules include protocols for screening and testing donors as well as record-keeping.  The FDA also audits sperm banks through site inspections to insure compliance.  And most major sperm banks are licensed and inspected by states.

Still, am I the only person who thinks this has got to have happened before?  Whether it’s a mix-up, mistake or what Jason Bateman did to Jennifer Aniston in The Switch. (If I can admit I’ve seen it 12 times, you can admit you’ve seen it once.) I am not all that surprised in what I originally thought was a more common method of conception.

There are no industry-wide statistics on the number of anonymous donors inseminated births per year - strange, no? The media often reports it as 30,000-40,000 annually, whereas the American Association of Tissue Banks states it to be only between 4,000-5,000 (based on 1.5 vials per insemination, a 10% pregnancy rate per cycle and a 20% spontaneous miscarriage rate.) 

Cramblett and Zinkon’s lawsuit foreshadows a stifling future if Payton is to be raised in their small “racially intolerant” town.  But should that be the couple’s only concern?  Doesn’t simply being a child that is a partial product of an anonymous donor have other long-term repercussions?

In 2010 the Institute For American Values published a study on young adults conceived through sperm donation.  “My Daddy’s Name is Donor” examines multiple facets of the donor child’s experience and whether a connection exists to how they were conceived.  The study found that the children “fare worse than their peers raised by biological parents on important outcomes such as depression, delinquency and substance abuse.” 

While 45% overall reported that it bothers them that money was exchanged for their conception, children born to heterosexual or lesbian couples seemed to “hurt” less than those born to single mothers.  Yet practically half (47%) of donor offspring are concerned that their mothers may have lied about “important matters” while growing up, compared to only 27% of the adopted and 18% with biological parents. 

Cramblett and Zinkon are worried about raising their biracial daughter in a rural homogeneous area which unquestionably is a valid concern.  But apparently that is only one of many issues when having a donor child.  The lawsuit has two causes of action; breach of warranty, which is basic contract law, and wrongful birth.  Ouch.  How is a grown-up Payton going to feel about that one?

This intersection of law, race, sexuality, medicine and parenting has prompted interesting debate and criticism but it isn’t just part of the news cycle; it is going to define a baby girl’s life.  If Midwest Sperm Bank wants to keep its best swimmers in stock, they will settle this case thereby allowing Cramblett and Zinkon to relocate.  And then maybe buy a computer so this type of error never occurs again. 

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq