Payton, a Rightful Life Borne of a Wrongful Act

A Wrongful Life?

During my first year of law school, my Torts professor and I had a tense exchange over the concept of ‘wrongful life.’ I was a 30-year-old recent college grad and divorced mom with two elementary school-aged children and a bundle of frazzled law student nerves. We were discussing cases about lawsuits brought for damages for unintentional deaths caused by doctors and cops. We then turned to whether plaintiffs should receive damages (money) for a botched medical procedure to avoid pregnancy or to avoid the birth of a child who would have a serious disease.

The professor asked if such parents should be awarded money for the ‘damage’ of having a baby. I raised my hand… “Ms. Tolbert” (he said in the British, incorrect and annoyingly pretentious pronunciation of my last name). I said, if found guilty of negligent, the doctor should be required to pay damages in the form of all costs related to the child’s care up to and including college. (Refer back to the fact that I was a struggling single mom in a prestigious law school and trying my best to hold it all together). I empathized with the parents. The professor said children are gifts to their parents and therefore ‘wrongful life’ was not a cause of action and parents should not prevail.

Children can be amazing gifts; they’re also expensive. If a responsible adult takes precautions to avoid pregnancy and pregnancy occurs as a result of the negligence of a medical professional then compensation is fair. (Laws have changed since and certain states award money for an avoidable birth of a child with a congenital disease.)

The Injury of Being Black

Bringing us to Payton. The ‘problem’? Payton is the unintended bi-racial daughter of two white moms, who live in a predominately white Ohio community. Payton’s mom went to a fertility clinic in Illinois, chose what she thought was the sperm of a white donor but was inseminated with the sperm of a black donor, due to an apparent clerical error.

Payton’s mom brought suit against the fertility clinic for money. The twist is while she intended to get pregnant, she didn’t plan on having Payton—a black baby. And therein lies the alleged injury.

As that frazzled single mom, who chose tubal ligation in my early 20’s after two beautiful children, I empathize with relying upon a doctor to help achieve desired contraception and procreation choices. But Payton’s mom is suing because of the ‘hardship’ associated with raising a Black child in a white town.

Most people agree the sperm bank erred but the lawsuit reads as it’s a hardship to raise a black child. Payton’s mom never saw a Black person until college, lives in a racist town and feels unwelcomed on the Black side of town, where she takes Payton for hair care.

Most Black parents agree. It’s not easy. Harmful even? Just ask Trayvon Martin and Mike Brown’s parents. We know from first-hand experience the damage of Living While Black in America. However, most of us are fortunate to have parents and community with whom we can commiserate. We strive to raise children who are strong enough to deal with the sting of racism. We nurture them, teach them how to stay safe—physically and psychically—and ensure they know their worth.

Damages aside, Payton’s mom should prevail, so she can move to a community where Payton will get support and exposure to African American culture which she will need to survive, let alone thrive. Her moms are incapable of providing such an environment. And that’s the real damage: Payton being born to people who in 2014 can exist without any need for an understanding of African-American culture or life, or trials or travails. This case is for Payton, a Rightful Life borne of a wrongful act.

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