No Product Liability for Defective Sperm – Sperm Bank

Sperm Donation – A Pennsylvania judge issued a ruling about a year ago that stated that a woman and her child can move forward on a case to sue a sperm bank under product liability law. Well, the appellate court has since reversed that ruling as follows:

Shannon P. Duffy
The Legal Intelligencer
April 06, 2010

Genetic defects in sperm from a sperm bank cannot form the basis for a products liability suit, a federal appeals court has ruled, because allowing such a claim would be tantamount to recognizing a claim of “wrongful life.”

The ruling by the 3rd U.S. Circuit Court of Appeals in Donovan v. Idant Laboratories upholds a June 2009 decision by U.S. District Judge Thomas N. O’Neill Jr. that rejected claims by both a mother and a daughter who suffers from Fragile X syndrome, a mutation known to cause a group of maladies that include mental retardation and behavioral disorders.

O’Neill had initially ruled that, under New York law, the sperm bank could be sued under products liability laws because “the sale of sperm is considered a product and is subject to strict liability.”

But two months later, O’Neill reversed himself and dismissed the entire case, predicting that the New York Court of Appeals would reject the claim. “I find it more likely than not that it would find that the injuries alleged in plaintiff’s strict liability and warranty claims are essentially claims for wrongful life.”

In both rulings, O’Neill rejected all claims by the mother on statute of limitations grounds, finding that she waited too long after learning that her daughter’s genetic defects were directly connected to the sperm donor.

Now the 3rd Circuit has ruled that O’Neill’s second decision was correct in holding that the mother’s claims were untimely and that the daughter plaintiff had “no cognizable injury.”

“Wrongful life cases pose particularly thorny problems in the damages context,” 3rd Circuit Judge Maryanne Trump Barry wrote.

“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,” Barry wrote. “This comparison the law is not equipped to make.”

Barry, who was joined by Judges Theodore A. McKee and Morton I. Greenberg, quoted from Becker v. Schwartz, a 1978 decision of New York’s highest court, that said: “Whether 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.”

The ruling is a victory for attorney Rory L. Lubin of Wilson Elser Moskowitz Edelman & Dicker in White Plains, N.Y.

Plaintiffs attorney Daniel L. Thistle said he had urged the 3rd Circuit to certify the appeal to the New York courts because he believed the courts would allow the daughter to sue over the genetic defects in the sperm since the state recognizes so-called “wrongful birth” cases in which parents bring such claims, and since New York’s blood shield law is narrowly worded and doesn’t prohibit suits over human tissue.

“I wish they had let New York make that decision, but there’s not much we can do now,” Thistle said in an interview. “It was an interesting and challenging case. You can’t always win.”

For more information on this case and an analysis, go to Julie Shapiro’s blog at

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