Genetic Future

New Scientist reports that a 13-year-old girl with Fragile X Syndrome – a severe genetic disorder – is suing the sperm bank that provided the sperm that led to her conception.

Curiously, the legal issue hinges on “a product liability law more commonly associated with manufacturing defects, such as faulty car brakes”:

Donovan does not have to show that Idant was negligent, only that the
sperm it provided was unsafe and caused injury
. “It doesn’t matter how
much care was taken,” says Daniel Thistle,
the lawyer representing Donovan, based in Philadelphia, Pennsylvania.
Genetic tests have revealed that she inherited the disorder from her
biological father.

It doesn’t take a genius to see the consequences of this suit being successful: since shutting down sperm banks is a socially unacceptable option, either there will need to be regulatory changes to protect banks from litigation or the banks will be forced to implement routine carrier testing of donors for as many potential genetic diseases as possible (indeed, I would expect this latter process to become completely routine anyway within the next few years as testing becomes cheaper and customer demand for the service intensifies).

Incidentally, the New Scientist article notes that this is yet another example of state-to-state variation in laws, so regulatory clarification is certainly in order:

Donovan was conceived in Pennsylvania, where a “blood shield law”
protects sellers of human bodily material from product liability suits.
In New York state, however, sellers are not protected by any such law.
On 31 March, federal judge Thomas O’Neill ruled that Donovan’s case
should be tried in New York.

Comments

  1. #1 Anon
    April 9, 2009

    Ridiculous. This case should have been thrown out. What next, suing natural parents for our defective genes?

  2. #2 blub
    April 9, 2009

    Well, I do unterstand that people are upset when they buy sperm with defective genes. However, only the parents have a reason to sue – the child on the other hand would not exist if other (“healthy”) sperm had been used.
    I think, that a screening for easily detectable genetic defects should be obligatory. These test would have to be set out in writing within the buying contract.

  3. #3 Daniel MacArthur
    April 9, 2009

    Anon,

    Yes, I suspect that’s exactly what’s next – once carrier screening becomes readily available, such that parents would have no practical obstacle to using it. There are rocky legal roads ahead.

    There’s also an interesting philosophical question here for plaintiffs (including the girl in the story above): if your parents had undergone carrier screening, they wouldn’t have given birth to a disabled child – but whichever child they had given birth to wouldn’t be you.

    Can you sue someone for neglecting to perform an action that would demonstrably have prevented harm, but would also have prevented you from existing at all?

  4. #4 Scott Simmons
    April 9, 2009

    New development: the defective sperm and all products incorporating them are being recalled by the distributor for immediate destruction, in accordance with standard defective product procedures.

    Well, that’s what they should say …

  5. #5 MattK
    April 9, 2009

    I don’t think that the “she wouldn’t exist” argument is relevant. If she had been hit by a car and was paralyzed, the other driver’s insurance would be unwise to argue that she would have been a different person if she had not been paralyzed and therefore has no right to sue. The first part is trivially true, and the second does not follow. You are giving 100% weight to genetic criteria and 0% to environment. Nature via Nurture FAIL.

    That being said, I think that if the company wasn’t negligent then they should not have to pay. Or maybe the company could turn around and sue the donor.

  6. #6 neandrothal
    April 9, 2009

    I understand the legal/philosophical weirdness of the girl not existing without that particular sperm, but who, if anyone, is liable if a blood bank fails to screen donor blood for HIV and passes it on to a recipient? Let’s make the case even more similar: what if that blood bank was the only option available and the donor had needed the transfusion to survive? The recipient avoids death, but now has HIV.

  7. #7 John
    April 9, 2009

    So was the sperm donor a FX male? Premutations don’t seem to expand in the male germline. From GeneTests:

    Males who are premutation carriers are considered “transmitting males.” The premutation is inherited by all of their daughters and none of their sons. When premutations are transmitted by the father, small increases in trinucleotide repeat number may occur but do not result in full mutations. (In actuality, premutations transmitted from father to daughter may often regress slightly in repeat number.) All daughters of transmitting males are unaffected premutation carriers.

  8. #8 Daniel MacArthur
    April 9, 2009

    MattK,

    You are giving 100% weight to genetic criteria and 0% to environment. Nature via Nurture FAIL.

    Ha. If the plaintiff’s embryo had been flushed down the toilet, the (healthy) child who was born instead would share approximately 50% of her DNA, plus her family environment; if that counts as “the same person”, then I am actually the same person as my brother.

    This isn’t some philosophical argument about someone just “not being the same person” after an accident – we’re talking about the biological entity corresponding to the plaintiff not existing in any meaningful sense if the defendant had taken the required actions to prevent genetic disease.

  9. #9 Rebecca Taylor
    April 9, 2009

    If this girl should sue anyone it should be her mother. Creating a child with genetic material from a man you never met? This is the problem with artificial reproductive technologies. It turns children into consumer products that are considered defective if they do not turn out as ordered. I fell terrible for this girl that she thinks, at 13, she is defective enough to sue the sperm bank.

  10. #10 anomalous
    April 9, 2009

    Shoulda named her “Sue”.

  11. #11 Matthew Markus
    April 9, 2009

    “Can you sue someone for neglecting to perform an action that would demonstrably have prevented harm, but would also have prevented you from existing at all?”

    Sure, just look at airbag eye injury lawsuits. My major problem with this lawsuit is that I fail to see how it can proceed given that the Statute of Limitations on product liability in New York is 3 years. She was conceived 13 years ago! Something does not make sense here.

  12. #12 freelunch
    April 9, 2009

    Matt and Daniel, the court dealt specifically with the fact that the law that applies does not allow wrongful life suits so the girl would not be able to proceed on that particular claim. She will only be able to do it on the contract and warranty angles as a presumed third party beneficiary.

    The sperm bank is a long way from losing this case.

    The statute of limitations for minors tolls (doesn’t start running) until the child becomes an adult, 18. It did kick the mom off the case.

  13. #13 Sherri Bale
    April 11, 2009

    Since the sperm donor could not logically have been an affected Fra-X male, and could only have been a premutation carrier, this 13 year old girl who is bringing suit (and is presumably unaffected affected with the disease) must be suing on behalf of her own not-yet-conceived children, who are at risk of inheriting an expanded, and thus disease-causing pre-mutation from her. A very confusing situation legally, I would expect.

  14. #14 Terry Carmichael
    April 16, 2009

    Oh boy, this is a complicated issue. Well, in my opinion, if the sperm bank used a different sperm then she would be someone else. The fact that she is who she is is a result of using that specific sperm being used. Therefore, it was predetermined that she would have fragile-x. The sperm bank had nothing to do with that. Fragile-x is a part of who this girl is, and therefore what could the damages to her caused by the sperm bank? And if it is product liability, shouldn’t the people that engaged in the transaction (the parents?) be the ones seeking compensation?

  15. #15 silvio M., Montreal, Qc
    May 19, 2010

    It has been widely known that American system pusheh company to misleading info and inferior sperm and egg retreival to make quick dollar. Do you need egg or sperm from donor then you should look outside the USA, maybe Canada.

    Me and my wife are going throught the procedure im Montreal and have met many Americans with similar stories regarding greed over security when it comes to purchasing eggs or sperm. In USA a man could be low IQ and he will pass the test to sell his genetic material.

    silvio M.
    Montreal, Quebec

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