The 23-page opinion in the diversity case allows for a trial on the question of liability for selling for a defect known as “Fragile X” that caused mental retardation in a 13-year-old girl. Brittany Donovan of Philadelphia is pursuing both tort and contract claims against the New York sperm bank. Her mother bought the sperm in 1995.
In addition to the potential sweeping impact of the holding, the ruling distinguished between the claims of the mother and daughter. The mother, Donna Donovan, saw her claim dismissed under the statute of limitations because genetic tests showed in 1998 that the sperm donor was the source of the Fragile X genetic defect in her daughter. However, under the Pennsylvania Minors Tolling Statute, the statute of limitation does not run until two years after a minor reaches the age of majority (of 18).
Idant Laboratories allegedly promised its customers that donors are put through a careful screening process to ensure that they have a good genetic background. However, it shipped the defective semen from Donor G738 to Donovan’s physician in April 1995, and she gave birth to Brittany in January 1996.
The case also included a fascinating conflict of jurisdictions. Pennsylvania’s blood shield statute includes human tissues other than blood. New York’s statute includes only blood and its derivatives. So, Brittany Donovan would therefore have a valid cause of action under New York law, but not under Pennsylvania law.
To make it even more challenging, while New York governed the citizens in the case, the semen was used by Pennsylvania and thus the injury occurred in that state. The case reads like a law school exam.
O’Neill ruled that, since most of the significant conduct took place in New York, New York had a stronger interest in seeing its laws applied.
Thus, Brittany had valid contract and warranty claims in New York. On strict liability, he ruled that sperm would be covered under New York law. This is a departure from the view of other state blood shield laws and Section 19 of the Restatement (Third) of Torts that exclude human tissue and organs from strict liability coverage. O’Neill found no exemption for human tissues like sperm.
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