THE BLOG
10/06/2014 05:34 pm ET Updated Dec 06, 2014

Reproducing Race

More than a million children in the U.S. each year are conceived with donated sperm or eggs. Sperm banks and egg vendors offer online ordering and direct shipping of donor materials that prospective parents can shop for based on SAT scores, personality tests, even celebrity likeness.

"[W]hat we try to do is give [parents] as much choice as possible," explains Dr. Cappy Rothman, co-founder of the world's leading sperm bank, California Cryobank. "If our customers wanted high school dropouts," he adds, "we would give them high-school dropouts."

What many of these (mostly white) parents want is a child who will look like they do. This means picking a donor who is, like them, white.

So sperm banks and egg vendors try to make race-matching easier. Most separate donor directories along lines race and offer online drop-down menus to filter donors by race. Some even color-code the samples they store and ship: white for a white donor, black for a black donor, yellow for an Asian donor, and red for donors of "unique or mixed ancestry."

This isn't racial bigotry; it's business savvy. Donor services are responding to consumer preferences and trying to prevent a mix-up many parents would regard as unfortunate. Some want to hide the fact they couldn't conceive on their own. Others want a child who shares their genetic background.

This week, a white lesbian mom sued a sperm bank for "wrongful birth" after it sent her a sample from a black donor instead of from the white one she chose.

Race matters, she argues, because she and her white partner lack the "cultural competency" to help their child, whose physical features are "typical of an African American girl," to navigate the challenges of racial bias and residential segregation in her "all-white community" and "often unconsciously insensitive family."

It's not hard to sympathize with parents' hopes to spare their future child racial taunts or confused identity. Yet it is troubling for donor services to accentuate race in ways that invite parents to exclude wholesale from their consideration all donors of a particular race.

A little-known 1964 Supreme Court case called Anderson v. Martin illustrates the moral problem. That decision struck down a Louisiana law requiring that each candidate's race be printed next to his name on the ballot.

Racial labels are unconstitutional, a unanimous court held, not only because they "arouse[]" racial prejudice in democratic participation. It's also that they express a judgment that "a candidate's race or color is an important -- perhaps paramount -- consideration" in how people should vote.

Sorting donors by race is similar. It sends the message that race deserves a prized place in family formation. Racial salience should be resisted, in reproduction as in elections, because placing donor front and center expresses the problematic idea that single-race families should be preferred to multiracial ones and that families should be set apart by race.

Of course, sperm banks and egg vendors are not held to the same legal standards as government. But private actors can exercise state-like influence when they control the tools of decision making through the power of commercial markets and the prestige of the medical profession.

That's not to say donor race should be withheld altogether -- like symphony orchestras that audition aspiring members from behind screens. This norm of racial indifference rings false in view of parents' valid interests in decisional autonomy, reproductive privacy and racial expression.

But sperm banks and egg vendors shouldn't prime parents to think about a future child in racial terms. It's OK to identify race alongside other traits as long as donors aren't singled out that way. To find a donor of a particular race, on this approach, parents couldn't just flip to this section of the catalog or click on that quick-search button. They'd have to look at donors one by one.

The point isn't to inconvenience people who use donor services. It's to soften the prominence of race and the divisive message it carries. Nor is the point to pressure parents to integrate their families, even if making it costlier to race-match might lead some to consider donors they'd otherwise have set aside on racial grounds.

Racial classification in assisted reproduction shouldn't be condemned. Nor should people who turn to reproductive medicine be without recourse when fertility middle men are negligent. But the impulse to call one's mixed-race child a "wrongful birth" should make us rethink the racial preferences we tend to accept without question.

Dov Fox is a law professor at the University of San Diego and most recently the author of Neuro-Voir Dire and the Architecture of Bias.