Facts
In 1995 Brittany Donovan was conceived using sperm sold by a New York company called Idant Laboratories. Her Pennsylvania based mother, Donna Donavan was reassured that that all of the sperm donors had undergone a vigorous genetic screening process to eliminate the risk of genetic abnormalities in the donated sperm. In December 1997 Brittany was diagnosed with having a genetic condition known as ‘Fragile X’, which causes severe behavioural and mental problems. Tests revealed that the source and carrier of the syndrome was the original sperm donor, Donor G738.
Ruling
In Donovan v Idant Laboratories, Senior US District Judge Thomas O'Neill Jr. ruled on 31 March 2009 that 'under New York law, the sale of sperm is considered a product and is subject to strict liability.'
Judge O'Neill dismissed a claim being brought by Donna Donovan on the basis that the limitation period had expired and could not be extended. For 13 year old Brittany Donovan the limitation period does not begin to run until two years after she turns 18, so limitation was not an issue for her.
Both New York and Pennsylvania and have introduced 'blood shield statutes' that bar product liability claims in relation to blood derived products. However, New York (unlike Pennsylvania) does not extend the restriction to other human tissue products. Although Idant (the sperm bank) argued that Brittany’s claim should be dismissed on the basis that she was born in Pennsylvania and so the damage was suffered there, the Judge held that she should be allowed to bring a claim against Idant in New York since the “significant events” including the contract to purchase the donated sperm took place there.
The ruling the first of its kind will now allow Brittany Donovan to pursue both tort/product liability and contract claims against Idant.
To succesfully defend themselves against the claim, Idant will have to prove that Brittany is not a third party beneficiary of the contract or that the allegedly defective sperm was not from a carrier of Fragile X. In light of the tests carried out, the latter hurdle seems at present insurmountable.
Implications
Wendy Kramer of the Donor Sibling Registry, recently commented that "This could open the floodgates," to other sperm recipients suing sperm banks.
The UK position
Under the strict liability Consumer Protection Act 1987 (“CPA”), which transposes the European Product Liability Directive (85/374/EEC) (“Directive”), the definition of a product is very wide. But for a few exceptions it virtually covers everything, including pharmaceutical and blood products, bio-mechanical devices and general medical equipment. However, whether or not sperm and fertilised eggs would be considered as ‘products’ under the CPA has yet to be tested.
Section 3 of the CPA defines the meaning of a defective product:
“3. Meaning of ‘defect’
3 (2) In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including –
- The manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;
- What might reasonably be expected to be done with or in relating to the product; and
- The time when the product was supplied by its producer to another”
It would appear from 3(2) (a) that a sperm recipient woman might have a reasonable expectation that her donated sperm had been screened properly. She might also make incorrect assumptions about the risk that the screening may be unable to detect certain conditions.
In A v National Blood Authority [2001] 3 ALL ER 289 the Court of Appeal ruled in favour of 117 Claimants who brought an action for damages under the CPA arising out of their infection with Hepatitis C transmitted via blood transfusions. It was not contested that blood was a "product" under the Directive. The Claimants' case was that they were entitled to expect that the blood with which they were supplied would be safe and free from infection on the basis that they had not been warned of the risk.
It is less likely that UK sperm banks will be able to escape liability from a defective sperm claim by demonstrating that they did all that could reasonably be expected to eliminate the risk of genetic abnormalities, unless they had made the risk known to the sperm recipient.