A US judge has allowed a 13-year old girl from Pennsylvania with a genetic condition known as 'fragile X' to sue in tort and contract law the sperm bank from which the sperm she was conceived with was obtained after it was discovered that it was the source of her disability. Senior US District Judge Thomas O'Neill Jr. held in Donovan v. Idant Laboratories that, 'under New York law, the sale of sperm is considered a product and is subject to strict liability.' 

Brittany Donovan was conceived using sperm sold by a company called Idant Laboratories, based in New York, in 1995. Her mother, Donna, said that the company had informed her that all donors undergo a vigorous genetic screening process to eliminate the risk of genetic abnormalities in the sperm. However, Brittany was diagnosed with the syndrome in December 1997 and further tests revealed that the source was not her mother, as initially thought, but the original sperm donor, Donor G738, who was the carrier. 'Fragile X' is caused by a genetic mutation and is characterised by behavioural, physical and mental problems.

The relevant law in New York is different to that in Pennsylvania, where the Donovans live, in that although both states have introduced what is known as 'blood shield statutes' that forbid product liability claims on blood derived products, New York does not extend it to gametes. Idant argued that since Brittany was born in Pennsylvania and that the damage was suffered there, they could only bring a claim in that state and because Pennsylvanian law limiting product liability extends to human tissue, her claim could not be allowed. However, O'Neill held that Brittany should be allowed to bring a claim against Idant in New York since the significant events took place there.

The screening processes which should have prevented the mutated sperm from being sold occurred in New York, and the contract was also formed there. Further, the judge agreed that New York has a great interest in the proper regulation of its businesses which gave sway to the argument to permit the claim in that state. 'New York has a strong policy incentive to regulate the sperm banks in its state,' he held.

A claim brought by Donna Donovan herself was rejected on the basis that the limitation period had expired and could not be extended. For Brittany, limitation does not begin to run until two years after she attains the age of 18 and so in the present action is not an issue.

Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.