by Colm McGrath
When Lord Atkin spoke of the ‘neighbour principle’ as a boundary for the duty of care in the Common Law world, he did of course mean neighbour in an abstracted sense rather than the person in the next house. In much the same way, whilst sperm can quite easily be regarded as a product of a particular process, whether it would be deemed so in the eyes of the law, thus raising the potential scope for liability from disgruntled consumers, is another question.
However, in Donovan v. Idant Laboratories Senior U.S. District Judge Thomas N. O’Neill Jr. has ruled that a sperm bank was capable of being targeted by a strict liability action in tort as well as a claim for a breach of warranty in contract.
The plaintiffs, a mother and daughter, bought an action against the organisation that had, in 1995, supplied the sperm that had been used to conceive the now 13 year old daughter, Brittany. She suffered metal retardation due to a genetic deficiency in the sperm known as ‘Fragile X’. Whilst the mother’s claim failed on limitation the daughter’s did not and it was held that not only did the sperm count as a product in the eyes of the law but that the strict liability provisions of New York law applied. Much of the case turned on jurisdictional matters as the product was used in Pennsylvania, whose ‘blood shield’ statutes cover blood and other human tissues, but supplied from New York where the statute is restricted to merely blood products.
What then counts as sufficient to elevate the goods to a ‘product’ in the eyes of the law? The professional, scientific and commercial nature of the transaction as well as the ‘reduced’ nature of the sperm is clearly indicative and in keeping with the common law approach to dealing with body parts when separated from the body. Obviously the contractual claim is of less novelty, where Idant promises sperm free from systemic genetic abnormalities and this is not the case, such an action is straightforward, hinging on the nature of the contractual offerings. However to treat such a product as governed by strict liability rules in tort in absence of a statutory exception seems harshly unimaginative. As well as the Pennsylvania statute, The Restatement (Third) of Torts recommends excluding such non-blood tissues from the ambit of strict liability and it is submitted that this approach, absent the contractual matrix, is the more sensible. To do otherwise risks burdening those who are in less obviously commercial relationships with a higher degree of liability than ought to be the case for such intimate issues.
One can only speculate whether, in an era of prevalent sexually transmitted infections, male prostitutes are heading for the salty waters of increased liability. New York gigolos beware, your connection to those on the receiving end of your services may last substantially longer than you expect and your sweetly won pay may soon be heading for someone else’s pocket.