R. A. Lenhardt (Fordham) on “The Color of Kinship”…

Robin Lenhardt (Fordham)

Robin Lenhardt (Fordham)

Issues regarding family law are a challenge to categorize as asymmetrical market imperfections.  In this article, Professor Lenhart examines the case of Cramblett, in which a white-lesbian couple sued a sperm bank for mistakenly giving them non-race concordant sperm, i.e., a Black man’s sperm.  A ‘wrongful birth’ claim that depends on blaming the blackness of a child for the travails of the parents reproduces the myth of black inferiority.  To the extent the harms the white parents experience are real, losses of social capital represents an asymmetrical transaction cost. - DreSmith

From the article:

“Facilitating race selection by coding and segregating donor samples, and prioritizing race concordance to such an extent that, by some accounts, physicians feel compelled to counsel patients against the dangers of producing mix-raced children, reinforces a social hierarchy in which whiteness is prized, while degrading blackness and other departures from normative whiteness. Instead of disrupting the complex dynamics that attend racial formation then, such strategies reinforce them, perpetuating the myth that race is biological, an objective “essence,” rather than a set of shifting, social meanings.  T

Together, they have helped to make ART become a primary new site for the “social construction of race,” for ascribing meaning to “human bodies” and the phenotypical characteristics associated with racial difference. It shores up a racial hierarchy that pre-dates American slavery.”

“As the “wrongful birth” claims initially advanced in the case suggest, Payton's birth, from a race perspective, did little to enhance Cramblett's overall standing and, if anything, diminished it. For example, Payton's arrival evidently further complicated, rather than repaired, Cramblett's relationships with extended family. In addition to their often expressed discomfort with her sexuality, Payton's birth required Jennifer to contend with her relatives' “often unconscious[] [racial] insensitive[ity],” which included the propensity of one uncle to “speak[] openly and derisively about persons of color.” In this sense, Payton, rather than “normalizing” Jennifer, further queers her.Payton's blackness thus imposes a kind of associational harm on her birth mother.”

“The complaint, significantly, addresses this effect in a paragraph detailing the asserted burden of mothering a child whose hair and features are different from one's own:

As just one example, getting a young daughter's hair cut is not particularly stressful for most mothers, but to Jennifer it is not a routine matter, because Payton has hair typical of an African American girl. To get a decent cut, Jennifer must travel to a black neighborhood, far from where she lives, where she is obviously different in appearance, and not overtly welcome.”

“In the end, however, even these aspects of the complaint ultimately go less to Payton than to Cramblett's own “parental well-being” and the white privilege that made it possible for her to elide so many of the race issues that she has been forced to confront as the mother to mixed-race Payton. As one commentator observed, the Cramblett lawsuit exposes the extent to which Jennifer, as well as her former wife, Amanda Zinkon, “lived a confined and reprehensibly oppressive life before [Payton] was born.” Their “limited cultural incompetency” and ignorance of African Americans and other minorities stems from a failure to see and internalize the serious consequences of racial discrimination and persistent segregation in the United States.”