Movies, TV, and Pop Culture
Michelangelo's "Gotcha!" Where does God , the Lamb. and the entire Heavenly Host reside? In the human brain, of course! Of course Michelangelo could draw the outline of the brain because he dissected all those cadavers to learn about human anatomy for his figure studies. Unfortunately, the Pope and the clergy that approved the design did not have that opportunity. Did God create man, or did man create God? Next time I get out the Ouija board I'll have to ask "The Mick."
Interesting. Hadn't heard that story. Pff. Artists.
Nice touch ending the Podcast with Louis Armstrong's version of What a Wonderful World. I did notice that he got some of the lyrics wrong--not a single mention of yellow buses--but you still have to consider it an outstanding rendition.
A slip-up, yes, but I still think he could go places.
The Patriarch may be somewhat heartened to learn that Jennifer Cramblett's lawsuit against the sperm bank was dismissed. Her claims were Wrongful Birth and Breach of Warranty, and the judge correctly threw them out. She does still have the opportunity to sue under other theories, though.How she and her attorneys approached this case, as well as how they could proceed if they gave it another try, tie in well with the concerns the both of you raised in your discussion. Wrongful Birth, for instance, is a claim unavoidably tied to abortion. The claim in Wrongful Birth is that someone responsible (typically a doctor, but here they blamed the sperm bank) failed to inform a parent of a "defect" in the baby. Wrongful Birth does not allege that anyone caused the defect: only that someone failed to detect or inform. In other words, the claim is that the parents or mother were not given the opportunity to choose abortion: hence the birth was "wrongful." Give that a good think. The judge in this case quite correctly determined that "mixed race" was not a defect and thus dismissed the Wrongful Birth claim. The Breach of Warranty claim was based in an Illinois statute primarily intended to deal with blood, organ, and tissue donation, and he rightly threw that out too. I won't bore you with the legal rationale on that one.Consider, though, besides Breach of Contract or Negligence, which she could still sue for, what it would mean if she sued under a theory of Strict Liability. I've seen some talk of this in the legal blogosphere. This too is troubling. Strict Liability is a Products Liability claim. It is a theory of liability for a defective product, even in the absence of negligence, recklessness, or intent by the seller or manufacturer of the product. It also requires that some harm have been caused by the defect. In most Products Liability cases this harm is physical (e.g. you buy a lighter, and it explodes in your hand), but it can also be pecuniary. Ms. Cramblett would probably argue this, and one wonders how we put a dollar figure on her financial losses (and what indeed this says to the dignity of her child).But what then is the product here? Perhaps the baby, but more likely the product would be seen as the donated sperm. In either case, however, we are turning human beings or the fundamental building blocks of humanity into chattel. In fact, this is explicit in the case law. Strict products liability depends on defective chattel. Ms. Cramblett has already argued to the court and could argue further that the birth of the baby whom she loves was the result of defective chattel that caused her harm and therefore someone should pay her for her loss. Perhaps one day that will give her child pause. Or perhaps not. Who knows how sensitive or hard a heart may become to such things in this age.
The bottom line is that the fertility clinic DOES owe the women a sizable payout for their screwup. At the cost of between $30,000 and $150, 000 per round, I would bet that they assure women that they have quality controls in place to assure that the woman's own egg is being implanted, fertilized with the sperm of the donor she selected or provided, and there is no possibility of a mistake with their system of multiple checks and balances. They also must assure them they they have thoroughly vetted the sperm donors to assure their CVs are accurate. Thus, if she selected the sperm from a 6'4" man with an IQ of 150 who was on the last Olympic swim team and is an accomplished pianist, she would have some recourse if DNA tests confirmed that the sperm came for the 5'2" lab tech with red hair and an IQ of 95. The difference in race between the donor she selected and the baby just allowed the clinic's screwup to be detected immediately, rather than years down the road. Given the lawsuits against a couple of fertility clinics that have made the news in the past decade, where a single worker/clinic director provided the sperm for all the clients, I'm pretty sure that all clinics assure patients that such a thing could never happen at their practice.
[1/2]I hesitate to say what the "bottom line" is (let alone how sizable its payout) for a lawsuit that was properly dismissed. Ms. Cramblett's Wrongful Birth claim simply did not fall within the parameters of Wrongful Birth, and her Breach of Warranty claim under 745 ILCS § 40 (the Illinois statute her counsel relied upon) did not meet the purposes or requirements of that statute. Namely, the statute was enacted to provide some limitation of liability on providers of blood transfusions for contaminated blood causing physical injury to their recipients. There was no contaminated blood or biological material of any kind in this case, and Ms. Cramblett suffered no physical injury. That is all to say, as it stood on her counsel's first attempt at this lawsuit, the thing was properly dismissed.It is worth noting too that the sperm bank refunded some or all of Ms. Cramblett's money. If this were a simple Breach of Contract case, then perhaps a refund of the rest of the money and maybe attorney fees and court costs would do, but how do you calculate anything beyond that? How much liability do you impose on a sperm bank for a clerical error that results in "sociological" or cultural damage that is impossible to measure? The case or cases you reference where someone "donated" all of his sperm to his clinic are not on point, because that is a willful act. In this case, Ms. Cramblett asked for sperm donor #380, and she was given the sperm sample of donor #330. Midwest Sperm Bank kept its records on paper, which explains the entirely unintentional misreading of the number. So how much, how sizable a payout, should this company give for damages that range from the readily calculable (like the cost their client paid for the sperm) to the virtually impossible to calculate (like the difficulty of two homosexual woman in a small, mostly white town in Ohio raising a black child). Further worth noting, the more difficult those damages become the calculate, also the more distant we get from the actual mistake the sperm bank made, which again iterates the question: how much liability should be placed on Midwest Sperm Bank for how distant a collection of possible injuries?Now all of this is perfectly fascinating to me, because I am a lawyer and I enjoy this kind of stuff, but let me try to return this to what our hosts, the Patriarch and the Progeny, were talking about in their podcast. Consider this quote from the Complaint Ms. Cramblett's lawyers submitted to commence their now failed lawsuit, a remark she made to a psychologist concerning the reason she and her partner were seeking a sperm donor through a sperm bank: "We would have to bring a male into our lives and when you think of sperm, you think of sexual encounters and neither of us wanted to think of males in our lives that way again." That is a fascinating disclosure. No males "that way" in their lives again. And thus also no male of the related fatherly way in the life of the child they would bring into this world. As the commentary in the podcast noted throughout, we are designing … well, not just babies, but also families and the male means of making families without any males in any personal way involved.
[2/2]Imagine too, if a man in a real relationship with a woman made love to her and the two of them had a child, but the man quite accidentally failed to mention some family history of illness or some other genetic anomaly, and then by the genetic lottery their child had this or otherwise undesirable physical trait (undesirable to the woman anyway). No one in his right mind would imagine a lawsuit springing from that for all of the difficulties then possibly ensuing in raising that child. In natural reproduction we take our chances, and we choose to love (if we're doing it right) the children we get without requiring anyone else to pay for any of the difficulties of parenting. I suppose it is easier to transform parenting into a pecuniary transaction, complete with potential payouts in legal liability, when the parenting only takes place as a result of a pecuniary transaction.
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