The New York fertility clinic Reproductive Medicine Associates is facing two lawsuits from couples whose children, conceived using donor eggs from the centre, have Fragile X syndrome.
This genetic condition can lead to intellectual and developmental difficulties. The parents of the two affected children claim that the clinic and their doctor, Dr Alan Copperman, failed to test the women who donated the eggs to see if they were carriers for Fragile X.
After the children were born, the women who donated the eggs tested positive as carriers of the Fragile X mutation.
However, lawyers for Dr Copperman and the clinic have argued that the couples' lawsuits were filed too late. In New York State, the statute of limitations for medical malpractice law gives the plaintiffs have two-and-a-half years to make a claim. This is measured from when the alleged harm happened, or the date of the patients' last treatment.
Lawyers representing Dr Copperman and the clinic argue that the statute of limitations began when the women ended fertility treatment, and not when the children were born or the genetic abnormality was diagnosed. Both couples filed their lawsuits two years after the children were born, when the children began to show symptoms of the condition, including delayed development.
'It makes no sense to expect the parents to file a lawsuit before they even knew about the abnormality,' said James LiCalzi, an attorney for the affected parents, the Associated Press reported. 'A claim didn't exist here until this child was born alive.'
Caryn Lilling, an attorney for Dr Copperman and the clinic, argued that 'the statute of limitations must run from the time of the act until the Legislature decrees otherwise'.
The couples are seeking damages from Dr Copperman and the Reproductive Medicine Associates clinic for the added expense of raising children with a disability. The New York Court of Appeals has heard oral arguments and a decision is expected next year.