Friday, April 16, 2010

Further thoughts on sperm case

A few days ago, I wrote about Donovan v. Idant Laboratories, in which the court held 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." I have thought more about the case and I want to clarify my position a bit. There is more to it than I had originally thought.

I now understand the court's position. And I have to concede that there is support for it. At first, I thought that we could analogize the case to one where a fetus suffers an injury because of a product used by the mother during pregnancy. In such a case, the child could recover for his/her injuries after birth, assuming, of course, that the connection can be made between the injury and the product used by the mother. Such a case is not a "wrongful life" case because the child is not claiming that he/she would not have been born had it not been for the product; the child is arguing he/she would have been born without a birth defect. In other words, the use of the product caused the birth defect, not the birth itself. If the mother had not used the product, or if the product had not been defective, the child would have been born healthy.

However, there is an importnat distinction between that type of case and the case of the "defective sperm." Since that sperm contains the genetic material that makes a child who she is, what the use of the defective sperm caused was the birth of that particular child who is now the plaintiff in the case. If the sperm had not been defective, its use would have resulted, not in the birth of the plaintiff without birth defects, but rather, in the birth of a different child.

The point can be even better illustrated if the case had been argued as a negligence claim. Assume that the plaintiff had claimed that the defendant was negligent in not testing or screening the sperm, etc. If the defendant had not been negligent, the defective sperm would not have been provided to the mother. She would have been provided different sperm - with a different genetic code - and the child that would have been born would have been a different child than the one who was, in fact, born. The child who was born - who is now the plaintiff in the case - would not have been born at all.

Looking at it that way, the child's claim does resemble a wrongful life claim.

Having said that, however, what I said about the approach to damages in wrongful birth/life cases still stands. Many jurisdictions reject the general damages claim for wrongful birth/life while recognizing a specific claim for extraordinary medical expenses. In a jurisdiction that has adopted this compromise position, the court could allow recovery for expenses in the sperm case even while rejecting the wrongful life claim.

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