No Liability for Defective Sperm

[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.)   


The Third Circuit reasons that the claim for liability based on the quality of the sperm used in conception is analytically undistinguishable from other wrongful life claims.  Hence, New York law would not permit such a claim.   There is, in the words of the court, no cognizable injury.   

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.       


12 responses to “No Liability for Defective Sperm

  1. Was the mother’s claim based on product liabilty as well or some kind of breach of contract?

  2. The Court didn’t say that sperm is not a product; in fact, it seemed to assume that sperm was a product.

    “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.”

  3. Yes, actually that’s quite true. I think the heading of my post is wrong. Maybe I’ll change it.

    The original opinion by the district court recognized a claim for products liability. That’s where the title from the original post came from. The local news story headline is better than mine, but still doesn’t tell the whole story.

    Anyway, I agree and I think I might try to retitle it.

  4. So she was seeking damages to offset the cost of treatment for this disease? Her daughter seperately for pain and suffering? I can see how the later case would fail as her alternative is nonexistence but for having sold sperm to the woman with a defect that I assume she claims she should have been what warned about? Certainly she’s not suggesting that they should have sold her some other sperm so that she would have a different daughter? Very complex. I have no opinion. I’d like to be reasoned into one.

    • I think saramaimon is correct. The idea would be that the sperm bank is under an obligation to deliver a product reasonably safe for the intended purpose. If they don’t do screening they claim to do, they breach that obligation (or if they do it poorly), for that matter. And you can argue they should be held to account for the harm they caused. If, as is suggested, the defect could have been detected by amnio, then there are other questions. But the court never got to these issues since the mother had waited too long to bring her claim.

  5. I believe sperm banks provide specific information on the tests the donor has undergone. If the sperm bank provided false information they should be held liable. However, I am not sure under what doctrine.
    If they simply failed to provide that information, the mother can not assume there was no risk.
    Additionally, I believe fragile X syndrome is detectable via amniocentesis (correct me if I am wrong!) and the mother could have undergone this testing during pregnancy and chosen to abort.

  6. Of course sperm is not a product suitable for a products liability case. However, the internal protocol for handling the sperm can be subject of a professional malpractice claim with its (normally) very short statutes of limitation time line.

    As to malpractice, I am fairly confident that in 1995, the tests for fragile x were expensive and imprecise. The first tests were only introduced in 1991. Mainstream screening only got going in 2008. It would interesting to see the court file and track the theory of the case.

  7. This reminds me of some case where a woman was rescued from a burning car or something, and then became a paraplegic. She sued the rescuer, but I believe it was thrown out of court. Or so I recall- my memory is fuzzy on the details. If this is correct, it seems that courts rule that life is by definition better than non-life, no matter its quality.
    However, as I said, I am quite fuzzy on the details.
    But if this is correct, it is quite dangerous- it means that sperm banks can pretty much get away with any sort of deceit because after all, if not, the kid might not have been born.

    • I think the person who purchases the sperm could well have a claim IF she/he sues promptly after learning there’s a problem. I’m not sure whether you’d find that satisfactory.

      What this court is saying is that the child will not have a claim because figuring out whether it is better to be alive, but impaired rather than to have not been born is not something you can do in court.

  8. For my part, the ruling that there was a lack of cognizable injury is wrong. If you accept that sperm is a product then that would have altered the definition of what a cognizable injury is in this case.

    • I don’t think the court ruled out the possiblity of a products claim. The court saw that as the claim of the mother, however. She might well have had a cognizable injury. But she missed the statute of limitations. It’s the child’s claim that fails because of no cognizable injury. From the court’s point of view, it makes no difference what theory the child uses–the court is unwilling to allow a measure of damages that is the difference between an impaired life (whic the child has) and no life at all.

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