A lawsuit is being waged against the “wrongful birth” of a black child.
Patricia J. Williams November 12, 2014 | This article appeared in the December 1-8, 2014 edition of The Nation.
In a recent encounter between Fox’s Bill O’Reilly and Comedy Central’s Jon Stewart, the two men discussed “white privilege.” O’Reilly maintained that his accomplishments had nothing to do with race and everything to do with hard work. Stewart pointed out that O’Reilly had grown up in Levittown, New York, a planned community to which the federal and local governments transferred tremendous mortgage subsidies and other public benefits—while barring black people from living there—in the post–World War II period. O’Reilly thereby reaped the benefits of a massive, racially exclusive government wealth transfer. As legal scholar Cheryl Harris observed in a 1993 Harvard Law Review article, “the law has established and protected an actual property interest in whiteness”—its value dependent on the full faith and credit placed in it, ephemeral but with material consequences.
A recent lawsuit brought by Jennifer Cramblett pursues the stolen property of whiteness in unusually literal terms. Cramblett is suing an Ohio sperm bank for mistakenly inseminating her with the sperm of an African-American donor, “a fact that she said has made it difficult for her and her same-sex partner to raise their now 2-year-old daughter [Payton] in an all-white community,” according to the Chicago Tribune. Cramblett is suing for breach of warranty and negligence in mishandling the vials of sperm with which she was inseminated, as well as emotional and economic loss as a result of “wrongful birth,” which deprived her of the whiteness she thought she was purchasing.
The story was hot news for about twenty-four hours and included an interview with Cramblett on NBC. “We love her,” she said of Payton. “She’s made us the people that we are.” Cramblett then burst into tears. “But,” she continued through clenched teeth, “I’m not going to sit back and let this ever happen to anyone ever again.”
That disjunctive, the “but” clause of her despair, was reiterated throughout Cramblett’s court papers. Despite being “beautiful,” Payton was “obviously mixed-race.” While Cramblett purportedly bonded “easily” with the little girl, she “lives each day with fears, anxieties and uncertainty.” Her community is “racially intolerant,” plus Cramblett suffers from “limited cultural competency relative to African Americans,” having never even met one till she got to college. Then there’s Cramblett’s “all white” family, who can barely stand that she is gay…and dear lord, now this? While Cramblett felt “compelled to repress” her sexual identity among family members, “Payton’s differences are irrepressible,” the lawsuit states. “Jennifer’s stress and anxiety intensify when she envisions Payton entering an all-white school.”
But the infant Payton did not make Cramblett and her partner “who we are.” They lived a confined and reprehensibly oppressive life before she was born, and it was only because of her birth that they were forced to confront it. The real question is why or how they could have been happy with their lives before.
When Cramblett asserted that her town was “all-white”—in a state, in a nation, in a world that is absolutely not—one has to wonder how on earth that can be. The sad history of housing segregation in the United States is not a long-ago tale. Bill O’Reilly’s Levittown was racially restrictive not only by the developer’s private choice; racial segregation was underwritten by federal banking policies and guidelines in the administration of the GI Bill. In the postwar era, not only Levittown but the entire United States became a land divided between “inner cities” and white suburbs because of loan practices that red-lined certain neighborhoods if blacks lived there. Ninety-eight percent of home loans issued under the GI Bill went to whites, and only 2 percent to people of color.
Levittown remains one of the best-documented examples of the long-term distortion that discriminatory mortgage underwriting had in configuring the wealth gap between blacks and whites. Black people became renters in a land of homeowners because of public policy that denied them access to the same opportunities to accumulate equity in real estate. And for those who were able to afford a home, the very fact of one’s skin color lowered its value by virtue of the big red line that would instantly pop up around it. Today, Levittown remains 89 percent white.
Cramblett has exhibited no more awareness of this political history than Bill O’Reilly. Imagine if she and her partner cared about the racism that pervades their environment, instead of suing for the cost of dealing with their “private” distress. Reframed as a civil rights agenda, it might help them to see that they face no more or less than what any black family faces in the United States. They might begin to consider their claim of individual economic damages more in terms of a civil rights claim for affirmative action and a pushback against racial stigma. Perhaps they’d find renewed community and succor by working for fair housing, or by joining the demonstrations in Ferguson, Missouri, or by pushing for same-sex marriage laws in their home state of Ohio.
Instead, Cramblett seems engulfed by the same race panic that has put the bodies of other children at risk. Little Payton dispossesses her mother by being born, taking the space of a more qualified, more desired white candidate, erupting into the world as damaged goods—a neighborhood defiled as well as a family disappointed. “God’s punishment,” according to the online hate. “Mistake,” according to the court papers. That geography of mistrust confines us all, whether trapped inside carceral walls at one extreme or gated communities at the other. We are left with a segmented society that does not know itself as whole, our reflection lost in the narrowest shards of a broken mirror.