Reproductive Genetic Screening: More Questions Than Answers
The Genomics Law Report has published a couple of guest commentaries recently dealing with genetic screening—a topic our own Adam Doerr also addressed in two posts this summer dealing with “wrongful life” claims brought against sperm banks by children with genetic diseases inherited from their donor fathers. Such claims are premised on the failure of the sperm bank to conduct genetic screening that could have detected the defective genes—thereby avoiding the conception of the child on whose behalf the wrongful life claim is brought.
In this post, I look at a recent gamete screening controversy—the revelation that a man fathered at least two dozen children, all but two through the donation of his sperm to a bank, despite having a potentially serious genetic defect—and examine numerous issues the story raises. Many relate to whose interests are valued the highest. Should the wellbeing of the children born of the process—the only people involved who have no say in the matter—come first, or does respect for the autonomy of the parents control? I do not attempt to answer the questions posed, but seek to encourage discussion with respect to the need for clearer policies and guidance in a number of these areas.
The “Wrongful Life” Debate
As briefly mentioned in a prior post and discussed in a Connecticut opinion released last Friday, courts continue struggling to apply standard negligence principles in the context of genetic science, especially in the area of “wrongful life.” In a typical wrongful life case, a physician or geneticist fails to diagnose a severe genetic problem in a fetus. The problem is typically so severe that the parents allege that they would have terminated the pregnancy if they had known of the problem. When the child—or a parent acting on the child’s behalf—brings a claim in court alleging that the physician or geneticist was negligent in failing to diagnose the problem, it is referred to as a “wrongful life” claim.
In tort law, damages are generally compensatory in nature—they are awarded with the goal of returning the injured party to the position he or she held before the injury occurred. In a slip and fall case, for example, a successful plaintiff would recover damages calculated to compensate for medical expenses and income lost as a result of the injury. In the context of a wrongful life claim, however, compensatory damages raise logical problems. The basic claim is that the physician or geneticist made a mistake. Had the mistake not been made, the plaintiff asserts, his or her parents would have terminated a pregnancy.
Strict Liability for Sperm?
The ABA Journal notes an interesting case from a federal district court Pennsylvania, Donovan v. Idant Laboratories (pdf). In 1995, Donna Donovan, the plaintiff, was artificially inseminated with sperm provided by Idant Laboratories, the defendant. Ms. Donovan signed a consent form in which Idant represented that “(1) semen stored at Idant is exceptionally safe; (2) Idant has a screening program that far exceeds mandated standards and (3) Idant’s donors go through a rigorous screening process to ensure that they have a good genetic background and history.”
Donovan gave birth to a daughter, Brittany, in January 1996 using sperm from Idant Donor G738. Brittany was diagnosed with developmental difficulties related to her status as a carrier of the Fragile X gene (FMR1). Testing revealed that Donor G378, not Donna Donovan, carried the Fragile X gene. Donna Donovan sued Idant under a multitude of theories,* both as Brittany’s guardian and on her own.
