When a Wrongful Birth Claim May Not Be Wrong: Race, Inequality, and the Cost of Blackness

Abstract

The year 2017 marked the fiftieth anniversary of the Loving v. Virginia decision, in which a unanimous U.S. Supreme Court struck down as unconstitutional laws prohibiting interracial marriage. Today, when we consider interracial loving, we tend to envision romantic relationships. What is often overlooked, however, is the relationship between parent and child: among the most intimate of relationships. A primary reason for this oversight may be that we do not often conceptualize the parent and child relationship as an interracial space. Indeed, although most people select their romantic partners, few are afforded the opportunity to select their children outside of the contexts of adoption and assisted reproductive technology (ART). While there has been debate over the years about transracial adoptions, there has been little controversy surrounding race selection in ART. This may be due to the fact that within the ART sphere, race, particularly the presumption of race concordance between parents and their children, is seen as neutral and natural: a biological imperative. This assumption and the race selection that occurs in ART are rarely questioned or interrogated. This Essay disrupts these assumptions by using a recent case, Cramblett v. Midwest Sperm Bank, LLC, as a point of departure for examining the meaning and operation of race in the United States.