A federal judge has ruled that a sperm bank can be sued under product liability laws should the organization fail to detect genetic defects of a sperm donor. Senior U.S. District Judge Thomas N. O’Neill Jr. ruled that according to New York law, sperm is considered a product. Therefore, O’Neil wrote, sperm from a sperm bank “is subject to strict liability.” The ruling under Donovan v. Idant Laboratories specifies that a New York sperm bank can be sued by a teenage girl whose mental retardation stems from a genetic mutation carried by her biological father.
The plaintiff’s attorney, Daniel L. Thistle, regards the verdict as a victory, as it clears the way for his client, Brittany Donovan of Philadelphia, to pursue tort and contract claims against New York sperm bank Idant Laboratories. The bank sold sperm to her mother in 1995. According to the suit, the teen’s mother, Donna Donovan began research in 1994 to find a sperm bank. She claims that Idant Laboratories assured her that its donors go through a rigorous screening process to ensure that donors have a healthy genetic background.
Though the company stated that their screening program far exceeded mandated standards, the mother claims, her daughter showed signs of being a carrier of “Fragile X” shortly after birth. She consulted with doctors at Idant Laboratories and, she claims, was told that her daughter’s issues were not caused by Fragile X and could not stem from the sperm the purchased through Idant Laboratories. Further test results showed that Donna is not a carrier of Fragile X, while the anonymous sperm donor, named Donor G738, is a carrier of the gene.
Among many complications in the case, one of the most complex has proved to be the differences between Pennsylvania and New York tort law. Both states have legislation making for “blood shield statutes” that prohibit products liability suits based on blood or blood products. Pennsylvania’s blood shield statute covers human tissues other than blood, but the statute in New York includes only blood and its derivatives. O’Neill determined that there was a “true conflict” between the state laws because “semen is not a blood derivative,” thereby giving Brittany Donovan a valid cause of action under New York law, rather than Pennsylvania law.