When I first started working in the infertility field 25 years ago, the AIDS crisis had emerged, but doctors still were not screening sperm donors for the virus. One doctor actually said to me, “I didn’t screen my wife before I had children with her, why should I screen a sperm donor?”
The infertile couples didn’t see it that way. There might be lots of reasons to have a child with your spouse, but when couples go to infertility clinics, they are specifically trying to have a healthy baby. Yet, due to lack of screening, children created through sperm donation have been born with AIDS, hepatitis, cytomegalovirus, and a variety of genetic diseases. No mechanism exists for sperm banks to learn of the children’s problems and stop using the donor for future pregnancies.
The American Society for Reproductive Medicine now recommends screening of sperm and egg donors for certain disorders–generally disorders that have a high prevalence in the population or in a specific ethnic group. It would be too costly to screen for all potential risks.
But what happens when a child is born with a medical problem that could have been detected in advance, but wasn’t? Infertility clinics that provide sperm or eggs may now be faced with products liability-type claims from the resulting children. In a case pending in Pennsylvania, Donovan v. Idant Laboratories, 2009 WL 885380 (E.D. Penn. 2009), a child born with the genetic anomaly Fragile X sued the sperm bank. The court held that the child could pursue claims of third-party beneficiary breach of contract, breach of express and implied warranties of merchantability, and strict liability.
Leann Mischel, a university professor and mother through sperm donation, offers an additional means of monitoring sperm donors. Since neither the clinics nor the government keep follow-up records about the children, she’s created a website where women who use sperm donation can post information about the health problems of the resulting children. That way, the women who subsequently choose donors can avoid using ones whose children have serious health problems.