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Cat, Galloping

Their choice of words is definitely a little off-putting. Both the reference to having a child of their own and to the idea that the child will face scorn and ridicule... I'm not quite sure the context of that statement.

But anyway, yes, to everything you said so well. This part was especially well-put: if you go to a fertility clinic pursuing that end and the clinic takes your money and performs the expensive and invasive procedures required to achieve that goal, a goal they lead you to believe that you have achieved, and then you find out that's not what happened, of course that's mentally distressing.

Emma Jane

I saw this story linked elsewhere, and I'm having trouble getting past my initial my God! what cruelty to the child to file this suit! reaction.

(And, this is awful, but as someone who went through IVF for the sole reason of having a child who is the biological child of my husband, I'd, uh, like to know more about the circumstances that led to treatment.)

Still: I mostly harrrrmph! when I see people worrying about reproductive technology leading to commodification of human life, but it's hard to see how to provide any kind of redress to the parents--who certainly didn't get what they paid for--in this case without doing exactly that.


I saw this story earlier and felt so sad. There is absolutely enormous emotional distress involved here.

The article I read, however, seemed to have a different spin--that although the judge threw out two suits (against the obstetrician who performed the implantation procedure and against the clinic owner as an individual) she was still allowing suits with emotional distress causes of action against the clinic owner as an entity and against the guy who mixed up the samples in the lab.

And I'm not so sure I can dismiss the racial component entirely--I'm Asian and my husband is Caucasian, and if we underwent IVF but ended up giving birth to an African-American baby because of a lab mix-up, the magnitude of the mix-up would seem, or at the very least appear, greater than if the baby was only half biologically ours but was still half Asian, half Caucasian. It is not PC to say any of this, I am sure. But although I think the wording of the scorn and ridicule comment was unnecessarily dramatic, I do think that such a child of mine would be the recipient of a lot of questions and commentary throughout her life when her parents were seen--questions and commentary that nobody had anticipated or even factored into the equation when planning for her conception.

The race issue aside, the biggest problem, as I see it and as you more intelligently articulated, was that these people went in with the full and reasonable expectation that if the procedure was successful they would end up with a 100% biological child, and this is absolutely not what occurred. I have great sympathy for everyone in the family.


My initial thought how the family chose to mention how the girl would face scorn growing up and blame it on her apparent racial difference. It seems they are setting her up for such a result.

Secondly, I thought about what are they doing - if anything - about the actual bio father.

Lastly, I feel sorry for that little girl and am glad the judge threw out part of the suit. It reminds me of another case where the woman is suing for the expense to raise her child when the abortion failed.

It was a terrible, terrible error and one that will get more publicity for the anti-ART members to use for fear-mongering.


Not that I have ever undergone IVF but I imagine the entire procedure (results positive or negative) are emotionally distressing. . . and therefore deserve some ground as part of the hearing. I think the majority of fertiles think IVF is a one time treatment and it either works, doesn't, or in this case, gets botched. However the months leading up to the actual IVF are complex emotionally and fairly physcially invasive. It makes me think of my brother who was born with a cleft lip and palate. People are always quick to say "Well it can be fixed with surgery." Sure it can. Years of ongoing surgery. People often times fail to see the whole picture of a process the are unfamiliar with.

Distressing yes. Everything else. . .I'll end there. My heart does go out to the child in all this mess.


agree agree agree! We are stopping after our last failed IVF because the other options now available to us (donor eggs, adoption, etc) are not a path we choose. We wanted another child biologically linked to both of us; if that cannot happen, we are done building our family. Many many other people may disagree with our thought process, but this was our choice. And just as this couple chose IVF for the same reasons - to have a child that was biologically both the mother's and father's child - they absolutely must be suffering that this is not the result they were given, aside from whether they love this baby or not. It sure makes sense to me.


This is so awful, but my heart goes out to that lovely child. I read an excerpt from the lawsuit/proceedings that says something to the effect of "while we love baby J., everytime we look at the apparent physical differences we are reminded of this terrible mistake."
While I agree that the Clinic has tremendous liability and I can't for a moment wonder how I would feel in a simlar circumstance, I hope that when anyone looks at her they are reminded that she is an absolute miracle.


I feel so sad for that child. What a horrible way to grow up.

We had a famous case around here a few years ago where the clinic transferred the wrong embryos.

I think we have to trust our clinics so much and this is our biggest fear. That they will screw up and not tell us.


Not all the claims have been thrown out--I understand that the embryologist has been found liable and the claims against the owner of the clinic are going forward. I am no expert on New York tort law, but I believe in order to support a claim for negligent infliction of emotional distress (because I find it unlikely that the Plaintiff would sue for intentional infliction of emotional distress - there doesn't seem to be any evidence to support that) there must be a breach of a duty owed to plaintiff (the mother in this case) which exposes him or her to an unreasonable risk of bodily injury or death. Bovsun v. Sanperi, 61 N.Y.2d 219 (1984). While physical injury is not a necessary element of a cause of action to recover for negligent infliction of emotional distress, such a cause of action must generally be premised upon conduct that unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for her own safety. Saava v. Longo, 8 AD3d 551 (2nd Dept, 2004); Johnson v. New York City Board of Education, 270 A.D.2d 310 (2nd Dept, 2000).” See also EB v. Liberation Publications, 7 AD3d 566, 567 (2nd Dept, 2004). So, a claim that states, "We are conscious of and distressed by this mistake each and every time we appear in public" doesn't rise to that level. Another "interesting" case is the following: Jo'Ell Sheppard-Mobley v. Leslie King (whether an expectant mother may recover damages for emotional harm where the alleged medical malpractice causes in utero injury to the fetus, subsequently born alive. The court held that under Broadnax/Fahey, she may not).


The judge really doesn't think that the father has suffered emotionally? What a cad.

Horrible situation all around. The clinic should be put out of business, period, in my opinion.

I don't think for a moment that they do not love the child - she's so cute and looks so happy in that picture.

But still. Someone should be held responsible.


Just an aside - that R.E. was the first to diagnose my infertility and to advise that we do IVF. We did go on to do IVF, but specifically did not pursue it with him because his office was such a mess, and we felt they couldn't be trusted with such a detail-oriented procedure. I'm so sorry for that family, but sadly not very surprised.


It is such a sad case. In the picture, the parents even LOOK sad, which is distressing because they are indeed raising children. They pick up on those things as they get older.

I don't know what I would do in this case. I don't think it would be that hard to get past the fact that she had a different Dad and I certainly don't think I would ever feel differently towards her - she would be MY child. But I do think the clinic should be held responsible. It is understandable that mistakes like these can happen, but it SHOULDN'T happen and I believe there are ways to prevent it that maybe the clinic didn't follow.


From what I read in the article you linked to, the parents are trying to make variation on a wrongful birth claim in their lawsuit. Most states do not recognize that cause of action as being valid, thus the judge's conclusion that they were not injured by this child's birth. Still, the whole thing is disturbing and upsetting and it's sad that the parents are apparently so overwrought by having a child that is only 50% "theirs" biologically. Very sad.


It semes to me that the emotional distress these parents will face is more or less the same emotional turmoil people face when they decide to pursue adoption after unsuccessful IVF attempts, but in this case after the birth of the child and compounded by a strong (partly societal) feeling of having been wronged - not by the universe (as people who chose to abandon IVF seem to experience when they turn to adoption) but by certain individuals.

I do think it's terrible for the child. What a horrible emotional mess to be born into.


I feel for the whole family. Certainly, if you go to a fertility clinic with the intent to use your own genetic material, you should get what you pay for. I would be very distressed to find that wasn't the case. It is every parent's perogative to chose donor gametes, or to adopt transracially or what have you, but typically they would have time to consider their feelings about these options, not have it sprung upon them after the birth of the baby. It is a pretty basic responsibility of a clinic to get the right genetic material into the right woman. I would be very suspicious that this wasn't the first time a mistake like this had happened. Imagine if the misapplied sperm was from a white man, the family might never have discovered the clinic's error.

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