The Color of Kinship

• Author: R.A. Lenhardt
• Position: Professor of Law and Faculty Director, Center on Race, Law & Justice, Fordham Law School
• Pages: 2071-2107

LENHARDT_PP_TO_AU (DO NOT DELETE) 7/25/2017 11:51 PM

2071

The Color of Kinship

R.A. Lenhardt

ABSTRACT: This Article addresses the need for family law scholarship that

better theorizes and grapples with how race informs American life in the 21st

Century. Family law scholars have been instrumental in documenting and

advocating for recognition of the “new kinship”—familial relationships and

affective ties forged outside of marriage and amidst dramatic demographic

shifts. In doing so, though, they have largely ignored race, focusing instead

on matters such as gender or class. The assumption is that kinship is race-

neutral. But, in fact, kinship has a color. Part II explores this reality by

analyzing Cramblett v. Midwest Sperm Banks, LLC, a case involving a

lesbian mother who filed a wrongful birth suit when the insemination process

she underwent resulted not in the white baby desired, but a child who is

partially black. Part III explains how the colorblind approach that informs

much of family law scholarship undermines the ability of scholars in this area

both to interrogate cases like Cramblett and to offer meaningful solutions to

the problems that families confront. Part IV advocates for a new approach to

issues of family and race, including whiteness. Mapping a research agenda

and alternative vision for family law scholarship, this article urges greater

attention to the ways in which race informs the functioning of all families

and intersects with issues like sexual orientation and class. This article also

makes the case that family law scholars can advance the national debate

about race and inequality in the United States by offering insights into the

ways in which family law systems and policies shape notions of race and

structure inequality across a range of areas.

*

Professor of Law and Faculty Director, Center on Race, Law & Justice, Fordham Law

School. I am grateful to the participants of the Fordham Law School Faculty Workshop, the Seton

Hall Faculty Workshop, the 10th Annual Lutie Lytle Workshop, the AALS Mid-Year Family Law

Workshop, the members of the eCRT Workshop at Wisconsin Law School, and t he Law & Society

Association’s John Hope Franklin Award Panel on Professor Osagie Obasagie’s book, Blinded by

Sight: Seeing Race Through the Eyes of the Blind, and the SMU Law Faculty Workshop. I am very

grateful for discussions with and feedback from the following people on matters relevant to this

paper: Mi chelle Adams, Elise Boddie, B ill Crawley, J essica Dixon, N any Dowd, Clar e Huntington,

Trina Jones, Solangel Maldanado, Serina Mayeri, Melissa Murray, Angela Onwuachi-Willig,

Kimani Paul-Emile, Camille Gear Rich, Aaron Saiger, Shaakirrah Sanders, Jed Sugarman, Ben

Zipursky. Finally, I am grateful to Kajon Pompey and Lauren Sarkofsy for critical assistance with

this Article, and to Clare Horan and others on the Iowa Law Review for their assistance, hard

work, and patience during the publication process.

2072 IOWA LAW REVIEW [Vol. 102:2071

I. INTRODUCTION: THE COLOR OF KINSHIP .................................. 2072

II. RACE AND THE OLD “NEW” KINSHIP: CRAMBLETT V. MIDWEST

SPERM BANK, LLC ........................................................................ 2077

III. COLORBLIND KINSHIP AND ITS LIMITS ........................................ 2088

IV. CENTERING RACE IN KINSHIP STUDIES ....................................... 2097

V. CONCLUSION: INCLUSIVE KINSHIP .............................................. 2106

I. INTRODUCTION: THE COLOR OF KINSHIP

In October 2014, Jennifer Cramblett filed a wrongful birth and breach

of warranty suit against the Chicago-based sperm bank that had been

instrumental in helping her and her then partner, Amanda Zinkon, achieve

their shared dream of becoming parents.1 Cramblett and Zinkon had

procured donor sperm from Midwest Sperm Bank, LLC and, with the

assistance of their physician, eventually became pregnant after months of

1. See Complaint for Wrongful Birth and Breach of Warranty, Cramblett v. Midwest Sperm

Bank, LLC, No. 2014-L-010159 (Ill. Cir. Ct. Sept. 29, 2014), 2014 WL 4853400 [hereinafter Cramblett

Complaint]. For articles on the case, see, e.g., Mark Gillispie, White Couple Outraged That Sperm Bank Donor

Turned Out to Be Black, TALKING POINTS MEMO (Oct. 2, 2014, 7:07 AM), http://talkingpointsmemo.

com/news/ohio-women-sue-wrong-sperm; Meredith Rodriguez, Lawsuit: Wrong Sperm Delivered to

Lesbian Couple, CHI. TRIB. (Oct. 1, 2014, 7:22 AM), http://www.chicagotribune.com/news/local/

breaking/ct-sperm-donor-lawsuit-met-20140930-story.html; Patricia J. Williams, The Value of Whiteness:

A Lawsuit is Being Waged Against the “Wrongful Birth” of a Black Child, NATION (Nov. 12, 2014),

https://www.thenation.com/article/value-whiteness. Subsequent complaints filed in this litigation

convey a significantly more truncated version of Cramblett’s story and allege injuries other than the

one initially crafted on her behalf. After a transfer of venue from the Circuit Court of Cook County,

Illinois, to the Circuit of DuPage County, Illinois, the DuPage district court dismissed the wrongful birth

and breach of warranty claims that she initially advanced with prejudice. Order, Cramblett v. Midwest

Sperm Bank, LLC, No. 2015 L 000282 (Ill. Cir. Ct. Sept. 3, 2015). Cramblett, by her lawyer, thus filed

an amended complaint advancing 9 claims sounding in contract, negligence, common law breach of

warranty, and various statutory violations. See Amended Complaint, Cramblett v. Midwest Sperm Bank,

LLC, No. 2015 L 000282 (Ill. Cir. Ct. Sept. 23, 2015). The DuPage court dismissed the statutory claims

with prejudice, but dismissed the remaining claims without prejudice and granted Cramblett

permission to file a second amended complaint. Order, Cramblett v. Midwest Sperm Bank, LLC, No.

2015 L 000282 (Ill. Cir. Ct. Mar. 11, 2016). Cramblett did not further amend her state court

complaint, however. Instead, in April 2016, she filed a federal diversity suit under 28 U.S.C. § 1332 in

the U.S. District Court of Illinois, Eastern Division. Plaintiff’s Complaint for Consumer Fraud, Common

Law Fraud, Willful and Wanton Misconduct, Common Law Negligence, Breach of Contract and

Breach of Warranty, Cramblett v. Midwest Sperm Bank, LLC, No. 1:16-cv-04553 (N.D. Ill. Apr. 22,

2016). That complaint sets forth a total of 7 claims against Midwest Sperm Bank, alleging consumer

and common law fraud, misconduct, negligence, and breach of both contract and warranty. See generally

id. Because later complaints provide a less fulsome account of Cramblett’s experience with Midwest

Sperm Bank as well as the nature of her concerns regarding Payton and the constraints that she

anticipates they will both face, this Article will draw on the information contained in the first complaint

filed in this litigation in offering its analysis.

2017] THE COLOR OF KINSHIP 2073

trying.2 In August 2012, their daughter, Payton, was born.3 Payton, by all

accounts, is a “beautiful” child.4 The complaint includes no mention that she

suffers from physical deformities, intellectual disabilities, or serious medical

conditions.5 Indeed, according to the complaint her mother filed, Payton has

only one notable flaw: she is the wrong race.6

Cramblett and Zinkon, both white, had carefully selected a white sperm

donor with the desire and expectation that their child would also be white.7

A few months into Cramblett’s pregnancy, however, they learned that those

expectations would not be met.8 Cramblett, it turns out, had mistakenly been

inseminated with the sperm of an African American donor.9 Thus, instead of

a child “with genetic traits similar to both of them,”10 she gave birth to an

“obviously mixed race[] baby girl,”11 one whose hair and other features mark

her as racially different in the all-white suburb in which she resides.12

Cramblett emphasizes that, notwithstanding the depression and devastation

she felt upon learning of the sperm bank’s mistake,13 “[she] bonded with

Payton easily, and [that] she and [Zinkon] love her very much.”14 But her

actions tell a more complex story. The complaint, filed in what proved to be

only the first phase of her quest to obtain pecuniary damages from the sperm

bank, plainly sought compensation for violation of unwittingly bearing a non-

white child.15 Specifically, the complaint requests damages for the “personal

injuries, medical expense, pain, suffering, emotional distress, and other

economic and non-economic losses” that Cramblett believes she has sustained

and will incur in the future because she is the mother of a mixed-race child.16

2. Cramblett Complaint, supra note 1, at 3.

3. Id. at 6.

4. Id.

5. See generally id.

6. See id. at 7 (including a claim for wrongful birth because the defendant “caus[ed]

[plaintiff] to be artificially inseminated with the sperm from the wrong donor,” i.e., a donor of

African American descent). As others writing in this area have observed, words such as

“wrongful,” “mistake,” or “tragedy” have frequently been deployed in cases involving cases of

unintentional multi-racial births. See Seline Szkupinski Quiroga, Blood Is Thicker than Water:

Policing Donor Insemination and the Reproduction of White ness, 22 HYPATIA 143, 143 (2007)

(discussing media framing of cases involving incidents of unintended multi-racial birth); see also

generally DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE MEANING

OF LIBERTY (1997) (discussing cases similar to Cramblett).

7. Cramblett Complaint, supra note 1, at 2–4.

8. See id. at 4.

9. See id. at 4–5.

10. Id. at 3.

11. Id. at 6.

12. See id.

13. See id. at 5.

14. Id. at 6.

15. See id. at 8 (seeking damages in an “amount exceed[ing] $50,000”).

16. Id. at 7.