I'm curious; by the logic given in the article, a woman who was inseminated by way of a glass tube has the possibility of legitimate legal recourse for defective semen, whereas if it were provided via a meat tube, it would be seen as a cruel aberration of nature. It's almost as if in the former case, the semen is considered to be manufactured, since it was purchased. I would like to hear from someone with a legal background to comment on this.
I asked a law school friend a similar question recently. The first order of business would be to rule out a violation of contract. If the sperm bank said the sperm was fit in all respects, or something like that, there might room for a battleground there.
There may or may not be a medical malpractice issue, which exists independent of the contract. Malpractice issues are generally an issue of 1) did the physician have an obligation to provide care? 2) was harm caused. Those are the two criteria. It is not necessary to show that the physician caused the harm. (kind of scary for docs, when you think about it).
The girl "does not have to show that [the sperm bank] was negligent, only that the sperm it provided was unsafe and caused injury"
I thought the notion of biological products like this as defective was an interesting idea. I'd never considered it before, and thought it might pique others' interest as well.
'causing injury' is an interesting thing to prove, since without the sperm the girl would not exist. Conflating the parties involved with the transaction being made (one of the parties _is_ the transaction) is sure to throw a monkey wrench into liability laws. This should be fun.
I'm not a judge, but if I was I would sidestep the whole issue by throwing this out because the girl has no grounds to bring a suit: her mother does. Then it falls neatly back into existing legal frameworks: did the sperm bank fulfill its obligation in the transaction?
---------
On further reading..
"..under a product liability law more commonly associated with manufacturing defects"
Damnit where is the wikipedia of law? Can't they at least _name_ the law, "US Code Title XII Section 5 Subparagraph Whatever.."
I agree. Faulty Car brakes fail to stop a vehicle and potentially endanger the safety of myself and others.
A learning disability (better phrasing than mental illness because it doesn't imply she's crazy, just impaired) simply implies that her ability to learn is diminished -- not failing. It takes her longer to grasp concepts or learn new things. This does not translate to a endangering society or the individual.
Failing car brakes do not endanger society, either, so we can leave that aside.
As for endangering the individual, having a learning disability certainly does endanger an individual. In the most obvious case, such a person is unlikely to be as well-educated as they'd otherwise be, which means they are unlikely to be paid as much, which puts them in a higher risk bracket for all kinds of lifestyle diseases which statistically result in earlier death. Having a learning disability probably takes years off of your life, all else equal at the start.
>Failing car brakes do not endanger society, either, so we can leave that aside.
Uh, yes, they do. My inability to stop might not kill or injure just me. Your loved ones jetta might be the object I slam into attempting to slow down.
>In the most obvious case, such a person is unlikely to be as well-educated as they'd otherwise be, which means they are unlikely to be paid as much, which puts them in a higher risk bracket for all kinds of lifestyle diseases which statistically result in earlier death.
Replace "learning disability" with "using windows" or "being black" or "growing up an orphan" and your argument still holds true. Its just a generality on life, not a rational legal argument.
Aside from the fact that so many in the Forbes 500 aren't highly educated (success was the right combination of timing, luck, position, savvy, persistence, and hard work on their part) the constitution of the United States merely guarantees the pursuit of happiness, not happiness itself.
Your inability to stop your car is very, very unlikely to kill enough people to affect society. If by "endangering society", you only meant "endangering at least one person other than the person without brakes", then we're just talking past each other.
> Replace "learning disability" with "using windows" or "being black" or "growing up an orphan" and your argument still holds true. Its just a generality on life, not a rational legal argument.
I don't think "using windows" fits here, but in any case, if there were someone to blame, legally, for those other things, then perhaps we'd see suits about them (and I suppose we might already in the case of orphans suing whoever could be legally blamed for the death of their parents, but I don't know of any examples offhand).
I don't know that the kid actually has (well, should have) any standing to sue, since they wouldn't exist without the actions that were taken, except possibly in the event that the sperm or egg was damaged by the defendant, rather than merely being selected in error by the defendant.
The sperm undergo random crossing-over. The only way you could determine the genetic content of a single sperm would be to isolate it's 3 meiotic sisters, determine their content, and then assume that the remaining spermatozoan contained what was left. Even then you're missing potential thermodynamic mutations that might have escaped the DNA repair process.
Wow that's a great reply. What I get out of that is since each cell can be different (possible mutations) you can't test a statistical sample from the same batch and assume that the one little cell that makes it through to fertilization is 100% safe. Is that a fairly accurate layman's summary?
Yes. In a deep an profound way, reproduction is the execution of all evolutionary algorithms you've every heard of, all the evolutionary algorithms that exist. It's ultimately pure statistical mechanics.
The article doesn't go into a terribly large amount of detail. With that as the basis, I'm not sure if this is fair to the sperm bank.
First, if she's a 13 year old girl with learning disabilities, then my first guess would be that she might not be cognizant enough to initiate such a suit. I smell greedy parents/lawyers behind this, as are behind many lawsuits.
Second, we have to look at the availability of genetic screen tests available when the sperm was donated. I don't know how long sperm samples are kept, but lets be lenient and say the sample was donated no more than 2 years prior to the insemination. So what genetic tests were available commercially between 1994 and 1996? The tests were way less comprehensive than what we have available now. I think the open question is whether or not this was a genetic disorder that could even be screened for in that time period.
Ultimately it should boil down to "Was it possible for the sperm bank to detect this genetic problem at the time of donation? If yes, did they have an internal policy to scan for such problems?" If the answer to the first question is "No", then I don't see how there is a case. If the answer was "Yes" and the 2nd answer "Yes", then there is a case for negligence. If "Yes" and "No", then that's a grey area that can only be resolved via court action.
As an aside, I wonder what the mother's take on this is. If a person can sue a company for providing "faulty" genetic material, then can I sue my parents or grandparents if I inherit something life-threatening? Do we hold healthy individuals responsible if they have children, but inherit two recessive genes from both parents that results in some kind of disability?
I'm reminded of Gattaca, where the main character's love interest takes a sample of his hair to a walk-up lab for a genetic cross-screening, to see if there would be problems in the genes of potential children.
