13 Year Old Girl Born With Disabilities Allowed to Sue Sperm Bank

Look in any court docket and there is sure to be a father-daughter lawsuit alleging some sort of negligent behavior by poor old Pops.  It seems now that precedent may be set allowing for lawsuits where the closest Mom ever came to meeting Dad was by opening the freezer in which his genetic tissue was stored.  A New York court has ruled that 13 year-old Brittany Donovan may proceed with a lawsuit against the company that sold her mother, Donna, sperm that caused her to be born with Fragile X Syndrome, a devastating genetic disorder that causes mental retardation and developmental disorders.  Well, it looks like we’re about to get a new definition of “deadbeat dad”.

sperm donor cup
Caution: Contents May Be Fragile

The sperm was not “defective” enough to avoid impregnating Mrs. Donovan but did carry the Fragile X gene.  After Brittany was born, Donna was tested to see if she was a carrier of the disorder.  She was not, but the sperm, donated by a very generous Donor G738, did test positive.  These tests eventually caused the Donovan’s to bring suit against Idant Laboratories, who sold the sperm.  The suit alleges that Idant was negligent in their screening process, allowing Brittany to be born with severe developmental disorders.

This type of lawsuit could become a much more common sight in the court system, as genetic modification and testing practices become more widespread.  Currently, most states have an exemption for blood and tissue sales from the type of “lemon law” known to lawyers as strict liability.  This is possibly an effort from the government to help blood banks and organ donation centers avoid legal action that could threaten to shut down such a network that saves so many lives.  As human blood and tissue sales move from the necessary (transfusions and transplants) to the extravagant (designer genes and lab-grown organs), these laws may need to change accordingly.

New York, where the lawsuit is filed, is one of the only states that do not allow human tissues (including sperm) to be exempt from strict liability.  It is possible that a victory in the Donovan case could stand as a means of convincing other states to change their laws to reflect the changing times.  Thus far, the only ruling from the judge is that the case is indeed valid and may continue through the court system.  Even this decision is worrying to many human tissue companies, as other people who bought defective sperm in the state of New York may also want to press charges.

Although it is a new twist on the old product liability argument, this case highlights the complex relationship between science and law.  The law is what determines who is protected in the event of wrongdoing and, as scientists push the borders of what is possible, an antiquated law must be stretched to keep up or be rewritten.  For the Donovan case, the law governing tissue sales may certainly be in need of a rewrite.  Such a law should look forward to a world where organs could be purpose-grown and be used in potentially non-life threatening situations.

Just like a person now could get a tattoo in an effort to modify their body, perhaps somebody in the future would want to change his or her eye color or elect for a non life-threatening procedure like replacing a broken eardrum.  Neither condition left untreated would pose a threat to the patient, so the lawmakers would not do well to reward the companies indemnity for taking risks in the production of new body parts.  However, different conditions may need to be applied for organs grown to save lives.  For the person who needs a heart transplant and would perish without a new one, forcing limited liability status upon the organ grower could possibly dissuade that entity from creating the product in the first place.

Of course, not all cases are easily decided.  What about a child whose parents paid a company to make him grow to six feet tall when he stopped growing at five and a half feet?  Do those people have legal recourse for their son’s perceived genetic imperfection?  The law is a line drawn in the sand, allowing for the resolution of disputes but no law is clearly established and it looks as if this particular law is becoming less effective over time.

So, does this entire debate rest squarely on little Brittany Donovan’s lawsuit?  In the narrow-minded sense of this one particular law, yes it does.  If the judge finds in favor of Idant Labs, lawmakers in other states may find no reason to amend their law, which would have simply not allowed a suit of this nature to proceed.  If the Donovan family wins the suit and enough people in other states pay attention, they could lobby their own state governors to review the law and ensure that it is fair.  In the light of a Donovan win, it is very unlikely that they would continue to find the law fair.

At first glance, it may seem quite asinine for a person to sue the very company that was kind enough to help her shuffle onto this mortal coil.  The case’s hint of Catch 22 may leave much to ponder.  Is this girl, in effect, arguing that she should never have been born?  But the plight of Brittany Donovan goes beyond simple product liability and hits at the tectonic relationship between science and law.  For more about the case, check this out.

Body modification is advancing at record pace.  The first double hand transplant has been conducted and the face transplant is now officially successful.  It may not be too long before these procedures become commonplace and, as more are done, some may not come out as expected.  Litigation could ensue and an antiquated law would have to be applied to a burgeoning science that no lawmaker could have predicted.  The Donovan case may be the spur that causes lawmakers to look at their current system and see where it is going.  As it stands, it does not look like the law is equipped to handle such an explosion of science.

Andrew Kessel
Andrew Kessel
Andrew is a recent graduate of Northeastern University in Boston, MA with a Bachelor of Science in Chemical Engineering. While at Northeastern, he worked on a Department of Defense project intended to create a product that adsorbs and destroys toxic nerve agents and also worked as part of a consulting firm in the fields of battery technology, corrosion analysis, vehicle rollover analysis, and thermal phenomena. Andrew is currently enrolled in a Juris Doctorate program at Boston College School of Law.
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