Wednesday, April 14, 2010

Court Holds Defective Sperm Can't Be Basis for Products Liability Suit; I don't see why not

A little over a year ago, I reported that a federal court interpreted New York law to allow a product liability case for the sale of defective sperm. (For more on that story go here and here.) This week, however, the judge dismissed the claim of the child holding that genetic defects in sperm from a sperm bank cannot form the basis for a products liability suit because allowing such a claim would be tantamount to recognizing a claim of "wrongful life." The case is called Donovan v. Idant Laboratories and it is available here. For a report on the case go to

The case involved claims by a mother and by her child. The mother's claim was dismissed as time barred by the statute of limitations because she had known that the genetic defect in the sperm was the source of the Fragile X genetic defect in her daughter since 1998, long before she filed the complaint.

The child's claim, however is the one that presents the more interesting questions. First, there is the issue of whether sperm should be considered to be a "product" for product liability purposes. The Restatement (third) of Products Liability excludes from its definition of a product human blood, blood products and human tissue. However, New York's statute apparently only mentions blood and blood products. I am not sure that sperm would be considered "tissue" either, but in any case, the court decided to apply New York law so the sperm would be considered a "product."

Even more interesting, it seems to me, is the holding that to recognize the claim would be equivalent to allowing a "wrongful life" claim. The opinion is very short and it does not explain how the case was argued by the plaintiff which makes it difficult to evaluate the court's conclusion, but from what I can see, it seems to me the court is wrong in one significant respect.

Here is what the court says about the subject in its entirety:
"Guided by the principle that “[w]hether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians,” Becker v. Schwartz, 46 N.Y.2d 401, 411 (1978), New York courts have held that “a cause of action may not be maintained on behalf of an infant plaintiff based on a claim of wrongful life . . . ,” Sheppard-Mobley v. King, 830 N.E.2d 301, 305 (N.Y. 2005) (quotations omitted). Wrongful life cases pose particularly thorny problems in the damages context: “Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependant upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make.” Becker, 46 N.Y.2d at 412. Regardless of whether a particular cause of action is denominated as one of contract, products liability, or something else, all of the claims on behalf of B.D. suffer from the same defect: the lack of a cognizable injury. See Paretta v. Med. Offices for Human Reprod., 760 N.Y.S.2d 639, 644 (N.Y. Sup. Ct. 2003) (“[R]egardless of the denomination of the nature of their claims, the infants could not recover because ‘it does not appear that [they] suffered any legally cognizable injury’” by being born with illness (quoting Becker, 46 N.Y.2d at 411).). In arguing that the defective semen left B.D. impaired and in need of costly treatment, D.D. is essentially saying that B.D.’s genetic makeup is her injury. The difficulties that B.D. now faces and will face are surely tragic, but New York law, which controls here, states that she “like any other [child], does not have a protected right to be born free of genetic defects.” See id. at 646. To find the contrary would invite litigation for any number of claimed injuries and, even more problematic, require courts to identify certain traits below some arbitrarily established marker of perfection as “injuries.” Accordingly, we conclude that, applying New York law, the causes of action asserted on B.D.’s behalf fail to identify damages different from those for wrongful life."
Here is where I think the court is wrong. What is typically called a "wrongful life" claim is one where the child claims that "life itself" is the injury, or that the conduct of the defendant prevented an action that would have prevented their birth. The comments and citations the court makes reference to in the first paragraph above refer to that type of claim. I know of no court that has recognized a claim argued that way. But there are a number of jurisdictions that have recognized claims for the economic damages caused by pre-natal conduct that results in increased medical costs after birth.

Assume, for example, that a negligent driver causes an injury to a pregnant woman and that the child is later born with a condition that can be scientifically traced back to the impact suffered by the mother in the accident. Based on those facts, the child-plaintiff could establish all the elements of the prima facie case and courts would allow him or her to support the claim. How is the claim in the defective sperm case any different?

As long as the plaintiff can scientifically prove that the birth defect was due to the defect in the sperm, and the sperm is a product sold commercially, why not recognize the claim? Even in cases originally filed as "wrongful life" or "wrongful birth" claims, courts have allowed recovery for the costs associated with the child's birth defects.

While denying recovery for general damages for wrongful birth, the Illinois Supreme Court, for example, has allowed recovery for the extraordinary costs of caring for the child during his childhood and just about a year ago, the Illinois Appellate Court held that the parents of a severely disabled child can recover damages for his care after he reaches the age of majority. See here. [UPDATE: that case was later reversed by the Illinois Supreme Court.  See here.]

 I just don't see the claim in the sperm case as a wrongful life claim. The child is not claiming for having lost the chance to avoid being born, but to help cover the costs suffered due to the defect in the defendant's product. The defendant sold a defective product that caused an injury and that injury will cost the plaintiff a lot of money. I don't see why we should not allow the plaintiff to recover the value of that injury.

UPDATE:  Go here to read my second post on this case in which I wonder whether maybe I am wrong about this!

1 comment:

Sonia said...

I agree with your analysis for several reasons. First, this is simply NOT a "wrongful life" suit. This is much more akin to a suit for medical malpractice that leads to a birth defect. It's not that, obviously, it's a products liability suit, but if one had to put it into a previously used "box", I think the one where patients recover for med mal is much more appropriate. Second, as a policy matter, refusing to compensate for "bad" sperm sends the wrong message to sperm banks and clinics: the courts should be doing everything to incentivize good screening procedures and not rewarding sloppiness. Third, this decision, to me, represents an antiquated view of assisted reproductive technology (ART). Whether the courts like it or not, sperm donation is part of the business of ART, and the sooner we can apply products and contracts principles to litigation, the more clarity and certainty there will be for all concerned.
Thanks for your thoughtful post and for calling attention to this misguided decision.
-Sonia Bychkov Green