Sperm Bank Subject to Strict Liability

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Law360, New York (April 06, 2010) -- A federal appeals court has upheld a lower court decision denying the strict products liability claims of a mother against a semen bank they accused of selling sperm with a genetic mutation that has caused her child's developmental disabilities.

In finding in favor of Daxor Corp. unit Idant Laboratories, a three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled Thursday that the mother's claims were barred by the statute of limitations and that those she brought on behalf of the child failed to state an actionable theory of harm or damages.

The appellate panel decided New York law does not permit tort claims for “wrongful life,” citing earlier cases that similarly acknowledge the “thorny problems in the damages context” of asking the court to compare between the choice of life in an impaired state and not being born at all.

Because New York law does not provide children with a protected right to be born free of genetic defects, the daughter's genetic makeup cannot constitute an injury, the panel said.

The mother sued the sperm bank in 2008 after learning 10 years earlier that her daughter's developmental delays could be associated with the fragile X genetic mutation that she herself did not carry. At the time Idant Laboratories told the mother that the developmental delays were unrelated to fragile X.

In April 2009 Judge Thomas O'Neill of the U.S. District Court for the Eastern District of Pennsylvania dismissed the mother's claims as time-barred, but ruled that the daughter could pursue products liability claims against the health care center.

Sperm, Judge O'Neill wrote, is different from blood and other human tissues which are exempt from products liability torts because of their necessary roles in public health.

Two months later O'Neill reversed himself, dismissing the entire complaint and ruling that New York courts would likely interpret the daughter's claim as one for wrongful life.

On appeal the plaintiffs asked the Third Circuit to certify the decision to the New York Supreme Court, because the state's limited blood shield law might indicate that the legislature wanted to have providers of tissue such as sperm be potentially responsible for defective products, attorney Daniel Thistle said Tuesday.

Because New York exempts only blood, a breach of warranty case could be brought regarding other human tissues, arguing not that the child shouldn't have been born, but that the sperm provider should bear some responsibility for the additional costs associated with raising a child with special needs, Thistle said.

“It was an interesting and challenging case. I'm disappointed that the court ruled against us,” he said.

Rory Lubin, an attorney for Idant Laboratories, said Tuesday that the appellate ruling was a correct interpretation of the law.

“The decision is just and well supported by precedent and as much as we can all be sympathetic to the [family] the decision was decided on the law and not sympathy,” he said.

Idant, which is based in New York, is in full compliance with regulatory standards in its screening process and even today there is no standard that would require the bank to screen for this type of genetic mutation, he said.

Lubin agreed with Thistle's contention that parents could have standing to bring a similar suit under New York law if they filed within the statute of limitations, though he maintained his doubt regarding the merits of the instant case.

“There are available genetic tests that can be requested at the parents cost, but the lesson to be drawn here is that there are thousands upon thousands of genetic mutations and it is simply impossible for the reproductive tissue banks to screen for every single one of those possibilities,” he said.

Fragile X syndrome, also known as Martin-Bell syndrome, causes intellectual impairment and emotional and behavioral problems and results in physical traits such as enlarged ears and a long face with a prominent chin.

Judges Maryanne Trump Barry, Theodore A. McKee and Morton I. Greenberg ruled on the appeal.

The mother and daughter were represented by the Law Offices of Daniel Thistle.

Idant Laboratories was represented by Wilson Elser Moskowitz Edelman & Dicker LLP.

The case is D.D. v. Idant Laboratories, case number 09-3460, in the U.S. Court of Appeals for the Third Circuit.