Litigation

SPERM A PRODUCT?

By Mark P. Loftus, Esq.

The July, 2009 ABA Journal recently had a blurb about an interesting ruling from a federal court judge in Philadelphia. Donna Donovan went to Idant Laboratories in New York to purchase sperm in order to have a child. [Didn't know you could purchase that item]. In any event, after the purchase, Donna gave birth to daughter who is mentally disabled. Donna sued Idant, on behalf of her child, claiming that the sperm she purchased was defective, as it contained a genetic defect known to cause mental impairment and other problems.

Judge Thomas O'Neill recently ruled that Brittany's mother could sue Idant on both a product liability and contract theory. Judge O'Neill held that the a contract was created between Donovan and Idant in New York. In addition, he found that Idant's screening of the semen also took place in New York. Consequently, New York law would apply to Donovan's claims.

O'Neill's ruling was particularly critical as to the products case. New York, unlike many other states, does not have a broad "blood shield law" excluding providers of sperm from product liability actions.

According to New York University law professor Mark Geistfield, O'Neill's decision is the first to hold that semen is product subject to strict liability.

Idant has filed a motion to reconsider.

The Journal's article, written by Mark Hansen includes an interesting graphic - a bunch of men lined up in front of a "DEPOSIT' sign. Nice.

Full post as published by Illinois Lawyer Blog on July 01, 2009 (boomark / email).