Semen from the Bad Bank

30. June 2009

If you want a child but depend on semen from a donor you might be able to appeal to the bald product liability laws of State New York. In case of problems cropping up with the children go ahead and take the delivering semen bank to court.

The Idant Laboratories business people in New York should have kept a better eye on Semen donor no. G738 a bit over 14 years ago. A few additional tests, perhaps more detailed questions every now and then – chances are good that the semen bank would have not accepted the man as a donor after all. Because along with the much longed for semen came a bad surprise: One thing is for sure today that his genes were much less healthy than originally thought and allowed for the profitable business with human genomic material. Since the semen bank accepted Mr. G738 as a donor though, his now 13 year-old daughter Brittany Donovan suffers from the sequelae of the so-called fragile-X-syndrome: Behavioral disorders, mental problems and a difficult socialization are among the burdens coming along with the rashly delivered semen.

This case where a damaged person takes the responsible semen bank to court after more than a decade will make legal history. Because it is all about one simple question: Can semen banks be held reliable for what they sell and if: For how long?

Not only in the US, the managers of a highly profitable reproduction market are anxiously observing what the outcome of this legal mega-event will be. Because there will be hardly any advantages for the semen bank at the end of this lawsuit: If the girl loses, the image of the business branch would be battered and any reservations would last for decades. If Brittany wins the case it would result in mainly one thing for all American semen banks: The period of warranty for human genome would be for a lifetime.

In State New York semen is considered a simple product once it was distributed commercially. Although manufacturers do not have to grant a life-long warranty another idiosyncrasy of he American legal system takes effect: The producer is held reliable for any damages caused any time by using deficient goods – even years after purchase. From the point of view of the attorney’s office “The Thistle Law Firm” which files patients’ lawsuits against powerful medical device technology- and pharmaceutical companies for 36 years now and took over Brittany’s case there is only one question here: Was the product semen deficient from the start – a fact already proven clearly due to the inheritability of the mutation. “If and how carefully the work was done, does not play any role here,” explains Daniel Thistle who represents the girl.

Brakes instead of Blood Shield

Unexpected support for Brittany came from Chief Justice Thomas O’Neill who relocated the case from Pennsylvania to the State of New York where the “Blood Shield Law” notorious among lawyers is not in effect. This law protects providers of human material from horrendous claims for damages. Actually this legal set of rules was developed in the 1980s to save the American blood banks from ruin during the then HIV blood donation scandal and to maintain the blood donation supplies of the countries. This Blood Shield Law is still effective in many states of the US – and now and then was used for semen banks as well.

A Chief of Justice wanting to get around exactly these particular laws and relocating the case to the Blood Shield Law-free State of New York opened Pandora’s box. Because most genetic disorders appear only years later – and would be negotiable with a little help from simple product reliability law if the Blood Shield Law does not apply.

For Brittany Donovan the idea of being treated like a car with defect brakes might not be that appealing at first. But one look at the success rate list of “Thistle Law Firm” representing her should give hope to the girl and a quiver to the semen banks in the US: A physician who overlooked important lab results of his patient who has deceased in the meantime, Thistle sued for 7 million US Dollars. And won.

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