Buyer beware: Human sperm subject to product liability laws

Image: clix / StockXchng

The number of single women who use donated sperm to conceive children each year is not known, but the American Association of Tissue Banks estimates the total number of donor-inseminated births at 4000-5000 per year in the US. A federal judge recently issued a ruling that will be of interest to anyone who is considering donating sperm or using donated sperm to conceive a child.

Background information

In 1994, Donna Donovan began researching sperm banks in search of a donor to help her conceive a child.  She settled on Idant Laboratories who promised that their donors went through a rigorous screening process that exceeded mandated standards.

Idant shipped sperm from Donor G738 to Donna's physician in 1995 and she gave birth to Brittany in January, 1996.  Donna noticed abnormalities in her daughter's development and in December, 1997, Brittany was diagnosed as a Fragile X carrier.  Further testing revealed that Donna was not a Fragile X carrier but Donor G738 was.

Fragile X is a genetic disorder that causes, among other things, mental retardation and behavioral disorders.  It is unusual for a daughter to have more severe symptoms of Fragile X than her father, but it can happen.  For ten years, Donna Donovan says that doctors at Idant assured her that her daughter's problems were not related to Fragile X and there was no defect in the sperm that the lab sold her.  In 2008, Donovan saw a report on her daughter's case in The American Journal of Medical Genetics and realized that the donated sperm was to blame for her daughter's difficulties.

The lawsuit

Donna Donovan filed a lawsuit against Idant Laboratories in her own name and on behalf of her daughter.  The issues in this case are complicated, but for now, it appears that the Donovans have won a partial victory.

The judge dismissed all of Donna Donovan's complaints because the statute of limitations has expired.  Since she waited 10 years to file her lawsuit, she is out of luck.  However, since Brittany is a minor, she has until 2 years after she turns 18 to file suit so some of the claims on her behalf stand.  This is not to say that she has won the case, only that it can proceed to trial.

The next question is which state's laws should apply to this case.  Idant Laboratories is located in New York, but the Donovans live in Pennsylvania.  Most states (including Pennsylvania) exempt human tissue from product liability claims but New York only exempts blood.  That means that under New York law, semen is subject to strict product liability laws.  The judge ruled that New York's interest in regulating its blood and tissue banks supercedes Pennsylvania's interest in addressing wrongs suffered by a Pennsylvania resident.  This is a huge victory for the Donovans because it means that the case can proceed rather than being thrown out immediately.

The issues

Under strict product liability laws, the plaintiffs (in this case the Donovans) don't have to prove that Idant Laboratories was negligent in any way, only that the product they sold caused harm.  The bigger issue, however, is a Catch-22.  Is the genetic defect "harm" if the alternative is for the child to have never been born?  In the case of defective brakes on an automobile, the issue is clear-cut.  Without the defective brakes, you arrive at your destination safely.  With the defective brakes, you wind up in a crash and suffer injuries or death.  Obviously the defective brakes caused harm.  For Brittany Donovan, the question is not so clear.  Without the sperm from Idant, she wouldn't exist at all.  With the sperm from Idant, she is alive, albeit with a genetic disorder.  Did the sperm cause harm?

If that's not murky enough, there is a question of contract law.  Donna Donovan entered into a contract with Idant Laboratories, but Brittany (obviously) was not a party to that contract.  The plaintiffs must prove that Brittany was "an intended third-party beneficiary" to the contract between her mother and the lab before she can be allowed to proceed with claims of breach of contract against the lab.

The ramifications of this decision

While I certainly feel for Donna and Brittany Donovan, I also have concerns about the wider impact of this case, whatever the final decision may be. 

• If the Donovans win, more states may reconsider the product liability exemptions on blood, tissue, and organs which could have an impact on life-saving transplants and transfusions.
• Since the Donovans don't have to show that the lab was negligent, only that their product caused harm, this could mean that a lab could be held responsible for genetic defects for which there are no tests available.  Fragile X is not generally tested for and industry spokespeople state that routine testing for such disorders would make donor sperm prohibitively expensive.
• Where does it end? What constitutes harm? Are we only talking about genetic defects that are life-threatening? What kind of genetic engineering might indirectly result from this decision? What is the psychological effect on a child when his or her parents claim that the child is "defective" and would have been better off not being born?
• If a mother (or child) can sue the lab from which she purchased sperm, can a woman sue her ex-husband/boyfriend/lover for impregnating her with defective sperm?  Can a man sue the mother of his child for genetic abnormalities inherited from the mother? Can a child sue its parents for defective genes?  Can a grandchild sue the sperm bank because he or she inherited a recessive genetic abnormality from the sperm donor?
• If the lab is held responsible, will the anonymous donor have any responsibility?  If the lab determines that the donor has a genetic defect, are they responsible for notifying the donor and is he responsible for notifying his future spouse/partner?
• Will the same standards of liability be applied to donated eggs and surrogate mothers?

I am not a lawyer and don't claim to understand all the details of this case, but I will definitely be watching as the effects of this decision could reach much farther than any of us imagine.