The Nation
April 10, 2007


Patricia J. Williams

The March 22 New York Post offered a fascinating study in the 
contradictions of our culture. The top half of the front page was 
consumed by "a stunning mother-child portrait" of Angelina Jolie with 
her newest adopted child, or as the Post put it, her "Viet man." The 
lower half of the page was given over to a more lurid headline ("Baby 
Bungle: White Folks' Black Child") trumpeting "a Park Avenue 
fertility clinic's blunder" that "left a family devastated--after a 
black baby was born to a Hispanic woman and her white husband."

The story about Jolie's magical mothering of her rainbow brood was a 
fairy tale of happily ever after. The bungled baby story, meanwhile, 
was considerably less heartwarming: Long Islanders Nancy and Thomas 
Andrews had trouble conceiving after the birth of their first 
daughter. They employed in vitro fertilization and baby Jessica was 
born. Jessica is darker skinned than either of the Andrewses, a 
condition their obstetrician initially called an "abnormality." 
She'll "lighten up," said that good doctor. Subsequent paternity 
tests showed that Nancy's egg was fertilized by sperm other than 
Tom's. The couple has sued.

If this were the end, the story might simply fall within the growing 
body of other technological mix-ups resulting in what are sometimes 
called "wrongful birth" suits, for lost eggs, failed vasectomies and 
so on. There is a legally recognized expectation that a certain 
standard of care will be observed in the handling of genetic 
material. There are ethical difficulties with any of these cases. 
Just to start with, it's a bit of a conundrum to call the birth of a 
healthy child "wrongful." Therefore, courts tend to be conservative 
in framing monetary damages, lest they be understood as a property 
interest in perfection. Hence, awarding the costs of raising an 
unplanned child resulting from medical malfeasance is obviously less 
troubling than awarding damages for "the pain and suffering" of 
parenting a child who was "unwanted." Indeed, in the Andrews case, a 
judge permitted the malpractice claim to go forward but threw out the 
claim for the parents' mental distress.

What's distinctive about the Andrews case is that the parents also 
tried to cite (also without success) Jessica's pain and suffering for 
having to endure life as a black person. The Andrewses expressed 
concern that Jessica "may be subjected to physical and emotional 
illness as a result of not being the same race as her parents and 
siblings." They are "distressed" that she is "not even the same race, 
nationality, they are." They describe Jessica's conception 
as a "mishap" so "unimaginable" that they have not told many of their 
relatives. (Telling the tabloids all about it must have come easier.) 
"We fear that our daughter will be the object of scorn and ridicule 
by other children," the couple said, because Jessica has 
"characteristics more typical of African or African-American 
descent." So "while we love Baby Jessica as our own, we are reminded 
of this terrible mistake each and every time we look at her...each 
and every time we appear in public."

One wonders what this construction of affairs will do to Jessica, now 
2, when she is old enough to understand. But here's the really 
interesting part. When I turned to other media accounts I found a 
picture of the family--from their 2006 Christmas card, no less. And 
Jessica looks exactly like her mother and elder sister. It is true 
that Jessica is slightly darker than her mother and that her hair is 
curlier than her sister's, but all three females are pretty clearly 
African-descended. As one of my students put it, if anything it is 
the paleness of the father's skin that marks him as the "different" 

The picture underscores the embedded cultural oddities of this case, 
the invisibly shifting boundaries of how we see race, extend 
intimacy, name "difference." According to the Post, Mrs. Andrews is 
"Hispanic" and apparently, by the paper's calculations, one Hispanic 
woman plus one white man equals "a white pair." The mother is "a 
light-skinned native of the Dominican Republic," seeming to indicate 
that while she may not be "white," she's also not "black." Each 
narrative implies that if the correct sperm had been used, the 
Andrewses would have been guaranteed a lighter-skinned child. But as 
most Dominicans trace their heritage to some mixture of African 
slaves, indigenous islanders and European settlers, and as dark skin 
color is a dominant trait, it could be that the true sperm donor is 
as "white" as Mr. Andrews. But that possibility is exiled from the 
word boxes that contain this child. Not only is Jessica viewed as 
being of a race apart from either of her parents; she is even 
designated a different nationality--this latter most startling for 
its blood-line configuration of citizenship itself.

I might have consigned all of this to tabloid sensation had I not had 
conversations in recent days in which this case came up. 
Well-educated legal minds of all political stripes were arguing that 
there's nothing wrong in the parents' claim, that it's a private 
choice they made to have a family that looks "like" them and that 
they should get some money for the girl's "trauma" since, after all, 
it is harder to be black in this society. Some of the people arguing 
this have previously argued against affirmative action because our 
society is supposedly colorblind. Just look at Angelina! If this 
dreamy reasoning is any reflection of the culture at large, then its 
logic signals a privatization of civil rights: Discrimination is no 
longer a social problem that implicates all of us and our 
institutions as unloving or uninclusive. Discrimination becomes 
destiny, the normative response to biologized "abnormality."

It is ironic. There is a bill in the Georgia state legislature to 
make April Confederate Heritage Month. Not Southern heritage, but 
Confederate. Whatever romance that term may conjure in the collective 
imagination, it's important to remember that the Confederate 
Constitution was almost identical to that of the United States. The 
only significantly different provision was one that said: "No bill of 
attainder, ex post facto law, or law denying or impairing the right 
of property in negro slaves shall be passed." In an era when none of 
us are slaves but all of us are increasingly objects in the 
marketplace, it is sad and alarming that "Negro" features, however 
arbitrarily perceived or shiftily delineated, still lower the value 
of the human product, of human grace.