The legal premise is based on product liability law that is usually applied to manufacturer defects such as faulty car brakes
Donovan does not have to show that Idant was negligent, only that the sperm it provided was unsafe and caused injury. "It doesn't matter how much care was taken," says Daniel Thistle, the lawyer representing Donovan, based in Philadelphia, Pennsylvania. Genetic tests have revealed that she inherited the disorder from her biological father.The idea of sperm as a commodity subject to product liability laws raises some interesting questions. In this age of personal genomes and genetic testing, how much responsibility does a sperm bank have to screen for genetic disorders with every available test? If a child inherits Fragile X the old-fashioned way, could they sue their parents?
Should genetic disease even be considered 'injury' for the purposes of legal liability? This is quite different from suing a car manufacturer after suffering an injury caused by defective brakes. No defective brakes and you make it to your destination without a crash and a broken leg. No 'defective' sperm and you don't exist at all.
Either way, as more and more genetic tests come into existence and screening becomes more available there will be interesting legal issues to navigate. I should have gone to law school!
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One important thing to note: Idant has a statement on genetic screening of sperm. (http://www.idant.com/fertilityServices/genetics.htm)
While automatic screens are carried out for particular conditions like Thalassemia or Sickle-cell, one may also obtain professional genetic counseling to find out the genetic history of the donor. Fragile X is not on the list of things they look for, but Huntington's and Hemophilia are.
Interesting.
Though the law being applied here doesn't require the company to be negligent, only that injury has occured (or maybe even just that the sperm was unsafe). At least according to Donovan's attorney.
I'm no lawyer, but if true that sounds like a sperm bank could be sued over 'genetic injury' for which tests don't even exist.
Since a judge has already ruled that sperm should be subject to the same product liability laws as manufactured products, the case probably lies in whether heritable disorders constitute 'injury'.
Does anybody with actual legal knowledge have any insights?
I have two brothers with Fragile X Syndrome. My Great Grandfather was the carrier, and because males only have one x chrosome 100% of their daughters will inherit the chromosome. My grandmother and all 7 of her sisters were carriers. It is to my understanding that when a daughter inherits the chromosome form a male carrier, the CGG repeats return to a premutated length. I wonder if the mother has been tested?? If the daughter is affected, not merely a carrier, I wonder if the mother has been tested? My grandmother and ALL of her sister were healthy intelligent women. Some of their children and grandchildren were affected.I have been going to conferences and classes on Fragile X for over 20 years. Since not everyone is knowledgeable, maybe the mom is looking for someone to blame?? FRX is the leading genetic cause of mental impairment and the leading genetic cause of Autism. 1 out of 120 females are carriers. Since men only have the one X, when it is Fragile, they are typically affected, for this reason, only 1 out of every 560 males are carriers (roughly 10% of those that inherit the gene). Statistically, Mamma is the most likely carrier. With Fragile X being the leading cause of developmental disablities, I think sperm clinics should test for it. We can't pre-test for Downs, but could eventually eradicate Fragile X. I know of a woman who was a carrier of FX, so she adopted. Turns out, her learning delay, slightly autistic adopted son had Fragile X. Since the delays can vary from slightly slow to full blown retardation, it gets misdiagnosed. We really need to raise awareness. Back to the question, if she didn't specify to have the sperm tested for Fragile X, then I don't think she has a case (So says my lawyer husband). If you don't know who yur making a baby with, and whether or not he has siblings or cousins that aren't 'quite right', then it is your own fault for taking that gamble. She should have done her own homework and picked out her own donor. If you want anonymous, then that is what you get.
Correction to my previous comment. It seems that the premutation repeats on a male can stay the same or decrease. Rarely do they increase to mutated number. So if the daughter was affected, she most likely inherited from her mother.
Anonymous,
The mother was tested and was not the carrier. (As noted in the OP, genetic testing indicated she inherited the disease from her father).
Like I said, I'm not a lawyer so your husband may be right on this, but my understanding was that under the product liability laws that were the basis for this suit all that had to be shown was that injury occurred because of the product, not that there was negligence or inadequate testing. Requesting a specific test may have prevented this outcome, but not requesting a test doesn't shield the company. Under the principles the plaintiffs were arguing, the case could go forward even if no test existed because the critical factor is injury, not testing.
That aside, it turns out the judge reversed his own ruling - a reversal that was upheld in federal appeals court - stating that genetic defects in sperm from a sperm bank cannot form the basis for a products liability suit.
"No defective brakes and you make it to your destination without a crash and a broken leg. No 'defective' sperm and you don't exist at all."
the comparison is illogical. the author compares having no defective brakes to having no defective (or any) sperm. first off, if you do not have defective brakes (or any brakes at all) it is unlikely to get to the destination without a crash (having defective brakes is far better than having no brakes). so we might presume that by saying "having no defective brakes" he meant "having no defects of brakes". in that case, the same should apply to defective sperm. so to make the comparison work you should say that having brakes without defects is like having sperm without defects which is quite good contrary to what the author said. By all this i wanted to tell you that the comparison which grounded the idea that suing car manufacturer is different from suing a sperm donor does not work and we might assume that there is little to no difference. if a person is concieved with a healthy sperm then it is the as it is with proper brakes - no damages. having defective sperm is like having defective brakes.
besides, what difference does it make? the fact that not using defective sperm would mean someone not being born does not take away any grounds for redress (at least it should not). the person is born and with rights to fair trial and it does not matter that if there was no sperm he would not have been entitled to rights to sue the donor. it almost seems that author is referring to gratitude for being created as a reason not to sue. but referring to gratitude is inappropriate in law (with exceptions, but this is not one of them)
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