Family Law

Ask A Lawyer: Can I Sue My Sperm Bank For My Kid’s Hazel Eyes?

Reproductive third parties should be accountable for their word, and this particular entity has not been completely truthful.

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While this isn’t usually an advice column, sometimes I get interesting letters that shed light on the legal topics I’ve discussed previously. Recently, I received the following inquiry:

Dear I Want To Put A Baby In You,

I gave my son a DNA test, and looked up his relatives online. Eventually, I was able to figure out who my son’s donor is. I don’t want to make waves, but my clinic sold me on green eyes and blond hair. But the donor is not really blond. At most, the hair color lightens up in some of his pictures in the sun. And his eyes, while a very pretty shade of blue, are not green. My son is a very handsome and looks very much like his donor, birthmarks and all. My child’s hair is just brown like the donor, and his eyes are hazel. Can I complain that I didn’t get the blond/green eye donor that I paid for? I dearly love my child, but I feel like I was tricked.

First, to my readers, I want to note that I did not even make this question up! I received this email and welcome future reproductive law questions. This is a great question. And while I can quickly foresee critics of the letter writer saying, “You have a beautiful child, stop complaining!” the issue raises some familiar legal questions. In fact, this question falls squarely within the arguments of one of my favorite law review articles, this Columbia Law Review piece on reproductive negligence.

In the article, University of San Diego Law Professor Dov Fox summarizes much of the history of assisted reproductive technology wrongs, and the difficulties of courts to find adequate solutions. He breaks these wrongs into three categories, the third one he calls “procreation confounded.” This “category of cases involved plaintiffs who received the child they wanted, except that the child was born with different genetic traits than those they used reproductive medicine to select for.” Here, for instance, you specifically chose a donor with certain hair and eye color. While the reason may have been merely personal or aesthetic preference, it could also have deeply and profoundly linked meaning for you.

As I read it, your complaint is not really about your son having different hair color and eye color than hoped, after all, those were genetic possibilities from the start. But the issue is that you was told one thing — as part of a sales pitch — about the donor, and the pitch was not true. They lied to you! And that’s upsetting. You put a deep level of trust in this clinic or sperm bank. And while here we are just talking some basic physical traits, it does make you wonder about the veracity of other information you received. For example, in the Xytex case, many recipients were excited to receive donations from a donor reportedly working on his neuroscience Ph.D., with musical talent and high IQ. Only after 20+ children were conceived from deposits of this popular donor did the truth come out. This catch of a donor was, in fact, a schizophrenic college dropout felon. Ugh.

Of course, the plaintiffs in the Xytex case have hit obstacle after obstacle. But even with these more extreme circumstances, judges have yet to find any liability. The reproductive negligence article argues that just because it’s hard to calculate damages, courts shouldn’t shy away from doing so.

While you probably don’t have a viable lawsuit on your hands, you should feel validated that you certainly have grounds to complain. Reproductive third parties should be accountable for their word, and other potential consumers should be warned that this particular entity has not be completely truthful. Complain to the clinic directly, and then, if not satisfied with the response, let the internet (read: world) know.

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Of course, maybe before doing so, consider one plausible explanation. It is possible that your donor’s hair color and eye color used to be blond and blue respectively. While my spouse was blond until college, he is now decidedly in the brown hair category now. And I personally swear my own eye color used to be green. Now they lean hazel. Just a thought.

While the dim prospects of a successful lawsuit may be unsatisfying, I hope it’s some comfort that you have a handsome and loved child to spend time with this holiday sending. Happy holidays!

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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