US judge throws out donor misrepresentation case

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.