[A commenter correctly pointed out some mistakes in my title and summary, so I’ve editted this accordingly.] Nearly a year ago I wrote about a case from Pennsylvania where a trial judge had held that sperm was a product and hence, a sperm bank could be held liable under product liability law. This case has now been decided by the appellate court.
That court (United States Court of Appeals for the Third Circuit) concluded that sperm is not a product, and hence the proposed law suit fails no liability could be imposed under the facts of the case. (For those who are picky about procedure (as I am)–note that after I wrote about the trial court decision that judge reversed himself, finding that sperm was not a product, and the appellate court has affirmed this conclusion.)
Here are the details: Donna Donovan, who lives in Pennsylvania, used sperm from Idant Laboratories in New York to become pregnant with her daughter, Brittany. Brittany was born in January, 1996.
As early as 1997 Donna Donovan noticed abnormalities in Brittany’s development. It turned out that Brittany suffered from Fragile X syndrome (which is a pretty severe problem). This was established in 1997. By 1998 Donna Donovan knew that she was not a carrier of Fragile X syndrome. In May of of the same year she learned that the anonymous sperm donor was a Fragile X carrier.
Donna Donovan brought suit in 2008. (Again, for procedure buffs–diversity jurisdiction gets the case in federal court and substantive NY law applies.) She raised claims on her own behalf and on behalf of her daughter, Brittany. While both claims ultimately failed, they fail for different reasons.
The mother’s claim fails because she waited too long to pursue it. The longest potentially applicable statute of limitations was four years and clearly more than four years had passed since Donna Donovan should have known of the potential for litigation.
This does not affect Brittany’s claim, because Brittany is still a child. (She must be around fourteen.) Brittany’s claim fails because, in the view of the court, it amounts to a claim for wrongful life. The idea here is that a child who would not otherwise exist cannot sue saying she would have been better off not being born.
Here’s the summary of New York law provided by the Third Circuit:
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,” 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 . . . ,” 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.” (citations omitted.)
I’m fairly sure this result will not sit well with some people. In defense of the opinion, I would offer two observations.
First, I think the court is correct that it is impossible to assess damages where the measure of damages is the difference between no life at all and a life that is impaired. This is not the same as measuring damages as the difference between an unimpaired life and an impaired life. That’s hard, but it can be done.
There was some discussion here a while back about whether children of anonymous donors would have been better off not being born at all. While it might be reasonable to discuss this as a moral question, I suppose, it isn’t possible to quantify the harm done (if there is harm done). That’s really what the court is saying.
Second, it’s critical to note that a person in the position of the mother here might well have a claim if she brings it promptly.
There are policy reasons behind having a statute of limitations (SOL), but when you see it work as it does here, it’s a harsh doctrine. In any given case where the SOL is enforced it seems like you could make an exception just this once. But the doctrine really only works if it is strictly enforced and so the courts generally do that.
The question of whether the court is right to enforce it here is really not that interesting to me. Far more important is the court’s holding–the mother’s claim fails because of untimeliness, not because it lacks merits. The merits question will have to wait until another case.