Is the Sale of Semen Considered the Sale of a Product? Can a Strict Product Liability Claim Ever Be Considered a Claim for Wrongful Life?

Most states have enacted “Blood Shield Laws” under which a person or entity cannot be found strictly liable or to have breached any warranties for the lawful sale and transfusion of blood and blood products.  Therefore, regardless of any warranties given about the quality of the blood or blood products no claim for breach of warranty, and no products liability claims, can be brought against such entities.  The question the Thistle Law Firm faced was whether these blood shield laws applied to semen a New York sperm bank, Idant Laboratories, had sold for purposes of artificial insemination.  The Thistle Firm filed suit on behalf of the child born as a result of artificial insemination, claiming that the semen sold by the sperm bank contained the genetic defect called the Fragile X Syndrome.  (Unfortunately it was ruled that the statute of limitations for any claim for the child’s mother had run well before the time that the clients had contacted the Thistle Law Firm).

The mother purchased semen from Idant with which she was artificially inseminated.  The mother claimed that Idant had represented to her in a consent form that (1) the semen stored by Idant was exceptionally safe; (2) Idant had a screening program that far exceeded mandated standards; and (3) Idant’s donors go through a rigorous screening process to ensure they have a good genetic background and history.  However her daughter had noted developmental delays following her birth which lead to genetic testing.  These tests revealed that the daughter was a Fragile X carrier, that the mother was not, and that the sperm donor was also a carrier.  As a result of being born with Fragile X, the daughter had permanently impaired developmental communication and play, motor planning, sensory and cognitive skills; she was at a high risk for premature ovarian failure and early menopause; she had already been diagnosed with ovarian cysts and problems with her menstrual cycles; she had difficulty with shyness, social anxiety; she was at risk for eye problems and seizures; and because her children would be at a high risk for the same problems the daughter would have to arrange for donor eggs to avoid this complication.  Finally, while a DNA test for Fragile X existed, there was unfortunately no known cure for the syndrome.

Despite the representations made in Idant’s consent form, Pennsylvania law did not permit the daughter to bring a breach of warranty and products liability suit against Idant.  This is because Pennsylvania’s blood shield law specifically states that no person or entity shall be held liable under strict liability rules or for breach of warranty for, “the lawful transplantation or insertion of tissue, bones or organs.”  Instead Pennsylvania law considers the sale of semen as providing a service, and not the sale of a product, and thus not subject to products liability laws.

However because Idant was a New York corporation the Thistle Firm looked to New York’s Blood Shield law instead.  Specifically New York’s law stated, “The collection, processing, storage, distribution, or use of blood, blood components, or blood derivatives … is declared not to be a sale of such blood, blood components or blood derivatives ….”  Therefore because New York’s Blood Shield law was limited to blood products only, the sale of semen could be considered the sale of a product subject to claims for strict liability and breach of warranty.  Because the contract to sell semen was accepted in New York, and because the semen was tested and screened in New York, the Thistle Firm successfully argued that New York law applied.  Therefore the daughter was initially permitted to bring a breach of warranty and products liability suit against Idant.

This was not the only hurdle for the daughter though because her claim presented a question of first impression – could a strict products liability and breach of warranty claim be considered one for wrongful life?  A claim for wrongful life states that but for the negligence of a defendant, a plaintiff would not have been born.  Because most states see these claims as arguing that it would have been better for a plaintiff to have never been born then to have been born with gross deficiencies due to the defendant’s negligence, they refuse to recognize them.  This is the case for both Pennsylvania and New York.  The daughter’s claim was not a negligence claim though.  However the court reasoned for the semen to not have any genetic defects so that it lived up to its warranties would be to alter the plaintiff’s genetic code so that she would be someone else.  While recognizing the difficulties the daughter would face were tragic, it was found by the courts that she had no recognizable injury.

What does this mean for claims against sperm banks?  Depending on the state’s blood shield law, or whether that state has adopted §19 of the Restatement Third of Torts for products liability (which also states that human tissue is not a product) they can possibly be sued under a strict products liability theory in addition to negligence by the child’s parents.  However because the child’s claim will be seen as one for wrongful life regardless of whether it is one for negligence or strict products liability, in most states the only person who can bring the claim are the parents of the child.  To read more about this case you can go to Donovan v. Idant Labs., 625 F. Supp. 2d 256 (E.D. Pa. 2009) and D.D. v. Idant Labs., 374 Fed. Appx. 319 (3rd Cir. 2010).

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