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.

Kids! Sue your parents for defective genes!

This story is a bit old, and a bit odd. A 13-year-old girl born with Fragile X syndrome is suing a sperm bank after genetic tests showed the genetic condition was carried on the father's X chromosome. (Weirdness about a girl inheriting an X-linked condition from her father, and a Fragile X male as a sperm donor explained here. The short version is that it's a spectrum, repeat-expansion disease whose severity varies from generation to generation so a mildly affected father could have a more severely affected daughter, though it's rare)

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!

At it again...

He-who-shall-not-be-named (or he'll threaten to sue you) is up to his old tricks again. Boy, does he know how to pick 'em. This time, instead of going after poor graduate students, he's picking on a small not-for-profit in Atlantic Canada.

Last week I received an email from Breast Cancer Action Nova Scotia, an on-line support group and information resource for breast cancer survivors. They had published a letter critical of ol' Bill and his shady cancer treatment outfit and, unsurprisingly, received the same standard letter threatening them with legal action for libel and defamation.

Here at the Bayblab, we've had some experience with Bill's all-bark-no-bite legal incompetence. At least twice he's notified our employers for blogging critical of his outfit, and one of those times he had the wrong person. (Hey Bill, having an actual case is a good first step, but threatening the right person is a close second)

We've already covered what we think of the brand of "medicine" he practices, but somehow I can still be surprised by his behaviour. If you're out there supposedly trying to help cancer patients, why would you threaten and bully an organization with the same goals of helping and supporting cancer patients? Why not do what a normal person would do, and explain your position and politely ask them to reconsider theirs? Why go straight to legal threats? (Hint: They probably don't have the same goals)

Anyhow, that's the latest bit of threats, bullying and harrassment from our favourite local quack. This seems as good a place as any to remind people of Project False Hope, the Canadian government's effort to combat health fraud.

Bayblab Threathened of Legal Actions -updated

Breaking news! Finally somebody understands how much a couple of graduate students working on cancer with a blog are a powerful authority. It was about time something was done to stop this nonsense. Here is the history of what happened when William O'Neil who has accumulated quite a reputation with his alternative therapy to cancer, and his attacks against a blog run by graduate students actually doing work on cancer.

On March 24th, at 10:51:31 AM somebody with the IP (70.53.21.88) who uses a dsl line with Bell Canada (sympatico Hi-speed edition!) and lives in Ottawa, Ontario stumbles upon the Bayblab. The person in question uses a windows XP machine, a screen resolution of 1280X1024 and Microsoft internet explorer 7.0. I warmly recommend to use firefox over MSIE 7.0 by the way.

At 10:51:45 AM He does a search on google.ca/blogsearch for "Canadian cancer research group"

At 11:00:29 AM He looks on technorati for who lists the bayblab as their favorite, come up with a name of a fan of the bayblab.

at 11:41:50 William O'Neil then sends an email to the yahoo account of the fan saying something like this: "If you don't remove all material concerning me or my company by monday March 26th, I will sue you for defamation". The crazy part is that the website was not even setup by that person so he's threatening the wrong person. I guess he has no other name to go by.

At 12:32:31 He does a search on the bayblab looking for "O'Neil". Too bad that name is never mentioned by us just quoted ad verbatim from quackwatch.

At 12:33:27 He puts an "anonymous" comment on the blog: "hey fuckwad! post a peer reviewed study demonstrating the efficacy of chemotherapy. goodluck...." Ouch somebody called me fuckwad, that's rude, my feelings are hurt. Yet another chemotherapy denier!

Geez thank god the internet is not anonymous...Somebody got his IP blocked!!!

March25th:
BREAKING NEWS, seems our admirer is not only harassing some of the OHRI senior scientists but is also trying to manipulate some of our employer (which is an offense under canadian law) and trying to get us fired by contacting Dr. Worton, the CEO of the OHRI. Little does he know that the OHRI's legal department does not care about this, and all he is doing, is angering people higher up.

Due to inadequate libel laws and lack of regulation of alternative medecine here in Ontario, quackery can prevail and free speech is muffled. I decided to slightly modify the post as a precaution. Just shows how antiquated the laws are in Canada and in the USA. Mr Oneil is actually operating his clinic within the law (or gray area), for the time being.

March 26th:
It seems Mr. O'Neil has nothing better to do than harass cancer researchers (from his work at 24.235.122.122). He sent another email this time claiming that he owns copyrights to his name and the name of his company. However according to Canadian law "Titles, names and short word combinations are usually not protected by copyright. A "work" or other "subject matter" for copyright purposes must be something more substantial. "
Links, Url and metatags are definitely not protected under copyright law in Canada. I guess this man just can't handle criticism by real scientists... how about you justify your claims Mr' O'Neil.
Has your method been published in any peer-reviewed publication? How do vitamins and amino-acids contribute to treating cancer and what is the efficacy? We'll gladely invite you to the podcast if you want to debate with real scientists.