Defective Sperm Not Actionable in the Third Circuit

In a case we briefly addressed Friday, and in what has been called the first decision of its kind, the U.S. Court of Appeals for the Third Circuit this month upheld a lower court’s 2009 ruling that genetic defects in sperm from a sperm bank cannot form the basis of a products liability suit. To allow such a claim to go forward, the court held, would be tantamount to recognizing a claim for “wrongful life.” D.D. v. Idant Laboratories, Slip Copy, No. 09-3460 (3d Cir. April 1, 2010).

The Plaintiff brought suit both in her individual capacity and as parent and guardian of her minor daughter against the New York-based sperm bank, setting forth causes of action for strict products liability and breach of express and implied warranties of merchantability. The Plaintiff began her research to find a sperm bank in 1994, when she was promised by Defendant Idant Laboratories that its donors went though a rigorous screening process to ensure they had good genetic backgrounds and that the company employed a screening program that far exceeded mandated standards. She thereafter purchased sperm from the Defendant and gave birth to her daughter in 1996. The Plaintiff then began to notice abnormalities in her daughter’s development. Subsequent genetic testing revealed that the child had Fragile X syndrome, a genetic mutation that causes mental retardation and behavioral disorders, as a result of the genetic defect of the sperm donor.

Initially, the district court judge ruled that, pursuant to 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.” However, two months later, the judge reversed himself and dismissed the case in its entirety, predicting that New York’s appellate court would reject Plaintiff’s claims.

The Third Circuit affirmed the judge’s second decision. In a thought-provoking opinion penned by Circuit Judge Maryanne Trump Barry, (interestingly, she’s Donald Trump’s older sister), she held that the child’s impaired genetic makeup was not a cognizable injury. She explained:

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. . . . The difficulties that [the child] now faces and will face are surely tragic, but . . . she like any other child, does not have a protected right to be born free of genetic defects. To find to the contrary would invite litigation for any number of claimed injuries and, even more problematic, require courts to identify certain traits below some arbitrarily established marker of perfection as “injuries.”

D.D. at *10, 11 (internal citations omitted).

“Whether it is better never to have been born at all than to have been born with even gross deficiencies,” Judge Barry quoted from a separate court’s opinion, “is a mystery more properly to be left to the philosophers and the theologians.” This is certainly an interesting lawsuit that has generated an intriguing opinion and sparked considerable discussion. To see some other bloggers’ and commentators’ views on the issue, see here, where the author notes the fallacy of considering one’s personal imperfection an injury for which another is to be held responsible, and here, where a reader disagreed with the lower court’s initial ruling allowing the case to go forward, arguing that creating a life is a “gamble” irrespective of how the parent goes about it.

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