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US judge throws out donor misrepresentation case

2 November 2015
Appeared in BioNews 826

A judge in Atlanta, USA, has thrown out a case brought against a sperm bank for misrepresenting the medical and social history of a donor.

Angela Collins and Margaret Elizabeth Hanson, from Canada, filed a claim against Xytex Corp and others alleging that a sperm donor was portrayed as smart, healthy and mature when he had a history of schizophrenia, dropped-out of college and a previous arrest for burglary (reported in BioNews 797).

Dismissing the claims in fraud, negligence and product liability, Fulton County Superior Court Judge Robert McBurney said the claim was founded in 'wrongful birth' and, as such, could not be allowed under Georgian law. Wrongful birth claims arise when parents attempt to sue for the birth of a child that they claim would not have been born were it not for errors made by the another party. A number of jurisdictions do not permit compensation for the cost of bringing up a healthy child.

In the decision, Judge McBurney noted that reproductive technologies have presented a challenge for the law. 'Science has once again – as it always does – outstripped the law,' he wrote. 'Plaintiffs make a compelling argument that there should be a way for parties aggrieved as these Plaintiffs are to pursue negligence claims against a service provider in pre-conception services. After all, the human life that makes the calculus so complicated has not yet begun when would-be parents are working with companies such as Xytex.'

Nancy Hersh, lawyer for Collins and Hanson, said her clients plan to appeal the ruling. 'I agree that the law lags behind science,' she said. 'I do feel that the decision is wrong because it permits bad behaviour by companies such as Xytex who generate millions of dollars in revenues by misrepresenting their product.'

The US Food and Drug Administration requires clinics in the USA to screen sperm donors for some contagious or infectious diseases, with some professional bodies adopting additional screening in non-mandatory guidelines, but it does not require genetic testing.

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