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Strict liability for donor sperm: sperm banks are not entirely off the hook.

Alas, the sperm super-soaker is here! The wait is finally over for those of us yearning to load donor sperm into a pressurized container and release it according to the specifications in the owner’s manual!

And now that the sperm banks and fertility clinics can rest satisfied that donor sperm inseminations may no longer carry the lingering aftertaste of seemingly impersonal and mechanical procedures performed at the doctor’s office, some of the legal consequences of using cryopreserved donor sperm will remain unchanged. Namely, the issue of liability - or non-liability - for genetic disorders developed by children conceived with donor sperm is not going anywhere, at least for the time being. Whether a sperm bank or a fertility clinic may be held liable will depend on whether the cryopreserved donor sperm is deemed a “product” or a “service.” (Apparently, at least in the legal sense, it cannot be both). If the cryopreserved donor sperm is deemed a “product,” plaintiffs alleging injuries stemming from the genetic disorder may bring a lawsuit seeking compensation based upon a “strict liability” theory. Under this theory, a merchant (e.g. a sperm bank) that places a defective product in the stream of commerce may be held “strictly” liable for the injuries caused by the product’s defect. In addition, distributors of the defective products (e.g. fertility clinics) may also be enjoined in such a lawsuit as defendants. “Strictly” means that the merchant and the distributor could be held liable even if it neither of them was negligent in creating the defect that caused the injury.

Federal District Court in Pennsylvania allowed a “strict liability” claim against a sperm bank.

In Donovan v. Idant Laboratories (See Donovan v. Idant Laboratories, 625 F.Supp.2d 256 (2009)) Donna Donovan brought a lawsuit on behalf of herself (as the purchaser of cryopreserved donor sperm from Idant) and her daughter Brittany (who was conceived with the donor sperm purchased by Donna) seeking compensation from Idant for injuries sustained by both plaintiffs after Brittany was diagnosed with a Fragile X disorder. Among the various legal theories under which plaintiffs brought their lawsuit (including, among others, negligence and breach of contract) was a “strict liability” theory. In other words, plaintiff’s argued that even if Idant was not negligent in detecting that the respective sperm donor was a Fragile X carrier, Idant should still be held liable as a manufacturer of the defective product (i.e. vial of sperm carrying Fragile X) that was sold to Donna Donovan.

In its defense, Idant argued that the “strict liability” claim was not applicable to cryopreserved sperm. Idant based this argument on a New York state law that exempted human biological products from strict liability, because such products were legislatively deemed to be a service rather a product. Specifically, Idant relied on New York Public Health Law 580, which read that “collection, processing, storage, distribution or use of blood, blood components or blood derivatives for the purpose of diagnosis, prevention or treatment of disease is hereby declared to be a public health service and shall not be construed to be, and is declared not to be, a sale of such blood, blood components or blood derivatives, for any purpose or purposes whatsoever.”

The federal court disagreed with Idant for an obvious reason: the cited law did not extend the statutory exemption from strict liability to sperm, which is not a “blood” or a “blood component” or a “blood derivative” that were covered under the New York Public Health Law 580. Moreover, no court had theretofore extended such an exemption to sperm.

The District Court, therefore, permitted Brittany’s strict liability claims to proceed, but dismissed the same claim on behalf of Donna, because Donna filed her lawsuit after the time permitted by the New York statute of repose. Subsequently, Idant appealed to the U.S. Court of Appeals for the Third Circuit.

Federal Appeals Court dismissed “strict liability” claim holding that this claim amounted to a claim for “wrongful life”, which was not recognized under the controlling New York state law.

On Idant’s appeal, the federal appeals court held that Brittany’s strict liability claim against Idant was nothing more than a claim for a “wrongful life”. (See D.D. v. Idant Laboratories, 09-3460 (3rd Cir. 2010), filed on April 1, 2010)). Reviewing the case under the New York state law, which controlled in this particular case, the U.S. Court of Appeals for the Third Circuit cited an established precedent under New York state law, namely that regardless of the denomination of the nature of her claims, Brittany Donovan could not recover because under New York law she did not suffer a legally cognizable injury by being born with Fragile X (internal quotations omitted).

The resolution of the Donovan case does not mean that “strict liability” claim cannot be brought at all.

To quote a cliche, the devil is always in the details. Although the Donovans were unsuccessful in their claims based the “strict liability” theory, it is not clear that such a claim cannot be brought against sperm banks or fertility clinics. For example, neither the district nor the circuit courts analyzed the viability of such a claim if Donna Donovan (the mother of Brittany) filed her claim before the expiration of the time permitted by New York state law to bring such a claim. In addition, the federal court analyzed this claim under state law. Finally, the decision of the Federal Appeals Court was filed under the court’s internal procedure rule that does not make this decision precedential even in the court’s own jurisdiction.

Therefore, it is not clear how a similar claim would have been analyzed under the laws of a state that, unlike New York, does allow “wrongful life” claims. Only time call tell.

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