I discussed the case of Donor 9623 with Dov Fox, a professor of health law at the University of San Diego. Fox covered the lawsuits in his book, Birth Rights and Wrongs, and he has spent the past year diving even deeper into the case of Donor 9623—interviewing parents who were deceived, children coming to terms with their genetic inheritance, and eventually the donor himself for a new Audible podcast.
Read: IVF mix-ups have broken the definition of parenthood
Fox and I have spoken before about the ways embryo mix-ups and other examples of reproductive technology gone awry confound the law and the very notion of parenthood. Tens of thousands of babies are born with the help of reproductive technology every year in the U.S., yet fertility clinics and sperm banks remain surprisingly unregulated. Mistakes, when they happen, have deeply existential consequences. Before the podcast’s release last week, we talked again about Donor 9623 and how courts try to make sense of the uncomfortable idea of “wrongful birth,” a term that he argues makes no sense.
This interview has been edited for length and clarity.
Sarah Zhang: In your book, you covered several cases where reproductive technology gone wrong poses these really hard questions: white parents who were inseminated with the wrong donor sperm and ended up with a Black child, parents who had aborted based on an incorrect fetal diagnosis, a surrogate who didn’t want to relinquish the child. What specifically drew you to this case of Donor 9623 so much that you wanted to do a whole podcast about it?
Dov Fox: I thought this case was really gray. It wasn’t that there was just an obvious loophole in the legal framework or the law hadn’t caught up to the advances in technology. It raised really deep, hard, fundamental questions about human existence, with an eye to the future of gene editing and embryo screening—what it means to be a parent and what is reasonable for would-be parents to expect. That’s an uncomfortable place for judges and for lawmakers.
This was one of the very largest and most international sperm banks that shipped to tens of thousands of parents in dozens of countries all over the world. This is an especially popular donor for more than a decade. And there were so many parts of his history that were concealed or misrepresented—his health and his criminal record and his educational background.
Zhang: You say this is an uncomfortable place for judges and lawmakers, and while wrongful-birth lawsuits get a lot of attention, they haven’t been very successful in court in the U.S. Why is that?
Fox: A lot of courts that say no to wrongful-birth claims say it’s about protecting the individual children. And there’s intuitive appeal to this idea. God, how awful would it sound to the child to learn that their life, their existence, is wrongful—that their parents didn’t want them, don’t want them, wanted a different kid instead, don’t love them. That’s not what parents intend, but that doesn’t necessarily mean that it doesn’t express that, whether to their kids or to other groups who have the very condition that their kids have.