Sperm’s a product–who’s liable?

Here’s a recent case from PA that poses some interesting questions.   That link is to the actual opinion, but I’ll discuss the case in some detail here.  There’s also news coverage here and here.

The facts at this point are those presented by the plaintiff.  Brittany Donovan is a 13 year old girl who lives in Pennsylvania.  She was conceived in Pennsylvania using sperm from a New York sperm bank.  Her mother selected the sperm bank at least in part based on various assurances that the sperm had been very well screened.

Brittany Donovan suffers from something called fragile X syndrome which constitutes a severe disability.     It seems that the donor was a fragile X carrier and the allegations in the complaint are that the sperm bank should have known this and therefore screened out the donor.

There are particularly interesting legal points here, one of them probably a bit obscure.    First, the allegedly defective sperm is treated as a product–akin to a defective can of paint or a defective automobile.   That’s consistent with a regime where sperm is routinely bought and sold and so shouldn’t really be surprising.  At the same time, it’s worth noting.

The more interesting question to me is the court’s consideration of what law to apply.   In this case New York law would allow the plaintiff to proceed with her case while Pennsylvania law would not.   The court must choose which law to apply .   This is known as a “choice of law” problem.  

It may seem curious that the Pennsylvania plaintiff is arguing that New York law should apply while the New York sperm bank is arguing in favor of application of Pennsylvania law.   But that’s just self- interested behavior–if the PA plaintiff ends up with PA law, she loses.

The court chooses NY law.   The judge reasons that New York’s interest in regulating its own sperm banks outweighs Pennsylvania’s interest in defining the rights of its own injured citizens.  This is essentially a win for the plaintiff and the lawsuit will be allowed to continue.

It isn’t so much this specific problem that makes the case interesting to me.   I’ve noted before that different states have different law about who is a parent in instances where ART is used.  In some places donors are fathers, in other places donors are not fathers, and in yet still other places, some donors are fathers and some are not.   As happened here, sperm is routinely shipped interstate.  (This is all the more true in the age of the Internet market for reproductive materials.)  I frequently wonder about the choice of law courts might face in cases involving sperm shipped from one state with one body of law into another with a conflicting body of law.   I haven’t seen much to answer the question.

In this case the court chose the state in which the sperm bank is located and that certainly seems a reasonable choice.  But it might be too much to assume that the same choice will be made by all judges in all circumstances.  In particular, I wonder whether if the question were not the safety standard (which is basically what is at issue here) but instead were parentage a court would chose the law of the sperm bank’s state rather than the law of the state where the child lives.  I can imagine a court would reach a different answer, but I’ll have to keep waiting to see if I’m right.


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