The 3rd U.S. Circuit Court of Appeals has ruled in Donovan v. Idant Laboratories
that genetic defects in sperm from a sperm bank cannot form the basis for a
products liability suit, because it would recognize a claim of "wrongful
life." According to Law.com, the
case:
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."
The Third Circuit affirmed, stating: “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.” Said the Court:
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.” Becker, 46 N.Y.2d at
412.
For procedural geeks, the lower case raised some interesting choice
of law issues. While both New York and Pennsylvania have "blood shield
statutes" that prohibit products liability suits stemming from blood or
blood products, Pennsylvania's blood shield statute includes human tissues
other than blood, whereas New York's statute includes only blood and its
derivatives:
O'Neill found that there was a "true conflict"
between the laws of the two states because "semen is not a blood
derivative," and Brittany Donovan would therefore have a valid cause of
action under New York law, but not under Pennsylvania law. . . .
Although other states' blood shield laws and Section 19 of
the Restatement (Third) of Torts all say that human tissue and organs are
included in the list of products that are exempted from strict liability law, O'Neill
found that "the relevant New York statute does not and no case law has
extended the statute to also exempt human tissues like sperm."
For a history of blood shield laws and an argument that the
blood industry’s response to the HIV/AIDS epidemic in the early 1980’s strongly
suggests that things would have turned out better for some, perhaps many,
recipients of blood products had strict-liability rules been in effect, see Clark
C. Havighurst, Trafficking
in Human Blood: Titmuss (1970) and Products Liability (PDF). The full symposium volume is here:
|
Volume |
Summer 2009 |
Number 3 |
|
|
SHOW ME THE MONEY: MAKING MARKETS IN FORBIDDEN Kimberly D. Krawiec
Special Editor |
|||
|
Kimberly D. Krawiec |
i |
||
|
Trafficking in |
Clark C. Havighurst |
1 |
|
|
Julia D. Mahoney |
17 |
||
|
Gender and the |
Rene Almeling |
37 |
|
|
Sunny |
Kimberly D. Krawiec |
59 |
|
|
Hugh V. McLachlan J. Kim Swales |
91 |
||
|
Elizabeth S. Scott |
109 |
||
|
Melissa B. Jacoby |
147 |
||
|
Excluding |
David E. Bernstein Thomas C. Leonard |
177 |
|
(HT: Kathy
Bradley)
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Does
The Number 1700 Cause Sperm To Go Where It Shouldn’t?
Celebrity
Look-Alike Sperm Sale
U.K. To Reconsider Payments to Egg and Sperm
Donors
More Live Sperm, Dead Donor
Live Sperm, Dead Donor . . . No Case
No End To Men