Sperm Banks and Product Liability

The New Scientist is carrying this rather peculiar story: a sperm bank in New York is being sued under product liability law by a girl who claims that her conception was from “faulty” sperm.  The 13-year-old girl named in the suit has Fragile X syndrome; apparently, she does not have to show that the sperm bank was negligent – “only that the sperm it provided was unsafe and caused injury”.

Of course, “wrongful life” suits are nothing new, and are frequently met with a couple of counterclaims: this is the only life you have, or could have, and so it’s hard to see how you’ve been harmed or wronged by it; and unless you can demonstrate that you’re worse off existing than not existing, you probably haven’t got even the hope of a sturdy argument.

At least on the face of it, the suit here might be construed as being different because it revolves around the idea that the sperm was faulty in some way sufficient for it to count as unsafe and injurious – the claim is not that the life is wrongful in itself, but that the wrong lies somewhere else.  On the other hand, and while, of course, I don’t want to be prejudicial about this, the difference strikes me as being cosmetic at best.  The suit looks like a stretch for the same reasons that apply to wrongful life suits.  The girl in the case could not exist but for that particular donor donating that particular gamete, which fused with that particular egg in that particular way.  Alter any of those factors – replace the “defective” sperm with a “non-defective” one, or have the genes work their magic in a slightly different manner, and you might get rid of the Fragile X – or, at least, some of the characteristics – but you’d get rid of the future litigant as well.  The girl seems to be claiming not that she would be better off not having been born, but that she would be better off having been created from different sperm – and the metaphysics of such a claim are… well… interesting

There’s another question, too: by what standard is the sperm faulty?  Just that the genes coded for a particular phenotypical quirk?  Well – doesn’t the same apply to all sperm and all eggs anyway?  Potentially, what’s in question here is a right to be born without genetic defects at all – and this presupposes an account of the point at which a mere quirk becomes a defect.  It can’t – surely – simply be a case of a defect being any characteristic that we would change if we could, because then which parent would escape a whipping?  And, if a middleman like a sperm banker can be held responsible for propagating faulty genes, would there be any reason in principle why the same wouldn’t apply to any “non-perfect” parent, granted that none of them is perfect either?

It’ll be interesting to see what happens…

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