Update on Sperm Bank Product Liability Lawsuit

A belated update on a story from a year and a half ago concerning a lawsuit brought against a sperm bank under product liability laws after a child conceived with that sperm developed Fragile X syndrome.

Under the laws being tested, it seemed all that needed to be shown was that injury (in this case, genetic disease) occurred as a result of using the product (in this case, sperm), not that negligence or lack of testing was a factor. At the time, I wondered whether genetic disease even qualified as "injury" since the alternative to injury is not being born at all. It turns out the courts had the same consideration.

A few months after the initial ruling by a judge that the case could go forward, the judge reversed his decision - a reversal that was upheld by a federal appeals court, on the basis that the situation basically amounts to a "wrongful life" case:

"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," Barry wrote. "This comparison the law is not equipped to make."

Barry, who was joined by Judges Theodore A. McKee and Morton I. Greenberg, quoted from Becker v. Schwartz, a 1978 decision of New York's highest court, that said: "Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians."

In addition to "wrongful life" considerations, the decision also points out other ways that treating genetic disease as injury is problematic.

The difficulties that B.D. now faces and will face are surely tragic, but New York law, which controls here, states that she “like any other [child], does not have a protected right to be born free of genetic defects.” To find the contrary would invite litigation for any number of claimed injuries and, even more problematic, require courts to identify certain traits below some arbitrarily established marker of perfection as “injuries.”

So kids, it looks like you can't sue your parents after all.