No Liability, Yet, for “Wrongful Life”
In Donovan v. Idant Laboratories, a sperm bank customer sued when her daughter was born with Fragile X syndrome. She argued that her daughter’s defective genetic makeup was her injury.
The courts have so far ruled against the customer because her claims rested on the proposition that she should be awarded damages for her daughter’s “wrongful life.”
As reported by Law.com, the rulings contain a lot of food for thought: “Simply put,” the judge wrote, “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.”
For now, at least, “This comparison the law is not equipped to make.” Ultimately, “[w]hether 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” than the court.
Judge Maryanne Trump Barry of the 3rd U.S. Circuit Court of Appeals noted that individuals do “not have a protected right to be born free of genetic defects,” and that “[t]o find to 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.’”
Hat tip to HealthLawProf Blog.
Actually I have some sympathy for the mother. Further, there is a clear cost here and economic theory teaches that the responsibility for cost control should rest with the party who is in the best position to exercise that responsibility. That, of course, is the egg donor.
I think I agree with Bruce. If the donor was negligent in not informing or not properly caring for the egg, the donor should pay.
Having a child involves risk. She took a gamble on using a sperm bank. That was her choice. This is what happened, now deal with it. She chose to bring her daughter into the world. Oh and by the way, good luck explaining to your daughter that you sued the sperm bank because you thought she shouldn’t have been born at all because she wasn’t perfect. Now if that doesn’t bespeak the depth (or lack thereof) of a mother’s love for her child, I don’t know what does. This is just sad. With all this “pro-choice” rhetoric, this woman made her “choice” and now that it hasn’t turn out the way she wanted, she wants someone to pay for her choice!!!
I recall reading about this case. The daughter would have no cause of action since knowing about the genetic defect would have prevented her conception.
To what degree is the sperm bank responsibility for screening all donors? I wonder why the mother cannot claim she was sold a defective product? It may have been too much time had elapsed since the purchase.
Why assume the sperm bank was at fault? The article does not say whether the woman was tested for Fragile X before bringing the case. Women can be unsymptomatic carriers of Fragile X. In rare cases, men can be unsymptomatic carriers.
The real question is what happens if courts say one can sue for wrongful life and that people do have a right to be born free of genetic defects.
I assumed that Ms. Donovan had been tested prior to bringing suit — which may not be the case.
If she had not been screened for Fragil X, I cannot fathom what made her believe she had grounds to sue. Men are only one-third to one-sixth as likely to carry the Fragile X premutation as women.
This will have broad implications in the invitro market and will increase costs for all involved.
I’m sorry I do not speak English properly:
I take this opportunity to report that the Fragile X syndrome is the leading cause of inherited mental retardation.
But it has some characteristics of it is inherited and carrier-grade level is inherited from the disease.
Father if only the carrier, transmits only the carrier state to all your daughters, and never to sons will be carriers, but healthy (without mental retardation)
But the father can only transmit the disease if the same condition as mental retardation, and if the donor is legally immune?
Of course it is very likely that the mother is a carrier (an estimated 1 in 360 women are) and if the mother can bear children by 50% healthy. The other 50% can be a carrier or affected, it is in the egg carrier expansion occurs if the gene carrier than 200 repetitions occur suffering from the disease.
Also the carriers, often have a sterile condition, known as FOP. possibly led her to undergo treatment?