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
SUMMARY

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... (see full summary)

 
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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.

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