Saturday, April 21, 2007

Been sitting on this one for a while

Image taken from this post

I read about this weeks ago, but I was waiting to get a copy of the actual decision. A couple, Nancy and Thomas Andrews, used in vitro fertilization to get pregnant and had a baby. However, the baby born to them was black, and neither parent is. Three DNA tests confirmed that the father wasn't Thomas. So the couple sued the clinic. From the judge's decision (which, I should note, only allows the case against one of the doctors to proceed):
This is a medical malpractice action and negligence action which also includes causes of action for lack of informed consent, breach of contract, fraud and assault and battery. The action arises out of an in vitro fertilization ("IVF") procedure that was performed at defendant New York Medical Services for Reproductive Medicine ("NYMSFRM"). Plaintiffs Nancy Andrews and Thomas Andrews, a married couple, allege that the IVF procedure which they agreed to undergo was intended to result in the fertilization of Mrs. Andrews' eggs with Mr. Andrews' sperm so that they could have a child who would be biologically their own, but that defendants negligently used someone else's sperm to fertilize the eggs.

According to plaintiffs, shortly after their daughter Jessica was born in October 2004, they knew something was amiss based upon Jessica's physical characteristics. Mrs. Andrews "was born in the Dominican Republic and has a complexion, skin coloration and facial characteristics typical of that region" while Mr. Andrews is Caucasian. (Andrews' affidavit, ¶ 11). The Andrews describe Jessica as "darker skinned" than both of them, with "skin, facial and hair characteristics more typical of African, or African-American descent."(Andrews' affidavit, ¶ 11). Nancy Andrews says that she questioned Dr. Keltz about this "abnormality" and that Dr. Keltz responded that it was normal, that the IVF was performed properly, and that Jessica would " 'get lighter over time' ". (Andrews' affidavit, ¶ 11).

The Andrews explain that by December 2004 they knew that something was clearly wrong, so they purchased a home DNA kit and sent it to a lab for processing. The results confirmed that Mr. Andrews and Jessica lacked the genetic markers that would be required if he were her biological father. Two subsequent DNA tests confirmed this result.

So far, nothing terribly interesting. But here's part of the plaintiffs' complaint:
The Andrews have particularized their injuries as follows:
. . . Uncertaintly [sic] about the genetic makeup health & future of the child JESSICA; in that JESSICA & both parents have been forced to raise a child that is not even the same race, nationality, color & descent of them & other family members; in that same will cause confusion, ill ease, depression and emotion [sic] strain and damage for the entire life of all the parties involved as well as the unnamed siblings, unnecessary curiosity, questioning & emotional damages all of which have yet to be played out & identified; that JESSICA & her parents have, are, & will in the future be caused to suffer extreme emotional distress & uncertainty as to her identity; that it is not possible & even less, not desirable, to identify the sperm doctor [sic] as this would cause irreparable harm to all parties & potentially invoke rights & privileges & infringe on the exclusive rights of JESSICA, and NANCY & THOMAS as parents; in that the parents have been caused to suffer exactly what they intended to avoid & exactly what they were NOT promised by the process provided by the answering defendant; that there is continuing uncertainty & distrust as to whether the genetic material of either NANCY &/or THOMAS has been inappropriately used for others; that they may have natural children or half children that they are unaware of . . .
[Bill of particulars for defendant Acosta, ¶ 11, emphasis in the original]
Plaintiffs also assert that Jessica has been injured in that
. . . she may be subjected to physical & emotional illness as a result of not being the same race as her parents & siblings; that invariably JESSICA will learn of the events of this case & suffer undefined physical & emotional damages thereby; that JESSICA will be or that she & her parents will be emotionally damaged by the anticipation or reality of her ridicule . . .
[Bill of particulars for defendant Acosta, ¶ 11]

It is the complaint that they are forced to raise a child of another color--which the Andrews, not the judge, emphasized particularly--which caught the eye of many. Later in the decision, Judge Abdus-Salaam wrote
The Andrews allege that due to defendants' negligence, they have been forced to raise a child that is "not even the same race, nationality, color . . ." as they are (Bill of Particulars for Acosta, ¶ 11). They aver that "[w]hile we love Baby Jessica as our own, we are reminded of this terrible mistake each and every time we look at her; it is simply impossible to ignore. This brings with it an unending feeling of helplessness and despair. We are conscious of, and distressed by this mistake, each and every time we appear in public."(Andrews' affidavit, ¶ 13).

It seems to me exceptionally callous, and even contradictory, to write that they "love Baby Jessica as [their] own", but that because she is "not even the same race, nationality, color & descent" that this "will cause confusion, ill ease, depression and emotion[al] strain and damage for the entire life."

Anyways. From what I've read, the judge dismissed every complaint that they had except for the "claim that there is continuing uncertainty and distrust as to whether the genetic material of either or both of them has been inappropriately used for others and that they may have natural children or half children that they are unaware of, and that they fear that Jessica's natural father may someday claim rights to Jessica, thereby interfering with their rights and relationship as her parents." So she's allowing the suit to continue on those grounds. The decision, by the way, is available on-line: go to this page, choose "E-Courts", then "Case Information: Civil - Supreme". Then do an Index Search for '109263/2005', choose "Show Decisions", and pick the one scanned on April 12, 2007. Or if you're lazy, don't. Won't bother me none.

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