The (Sperm) Banking Crisis: A New Means of Legal Redress - or New Tricks for Old Torts

54 Pages Posted: 7 Dec 2018 Last revised: 8 Apr 2019

See all articles by Barbara Pfeffer Billauer

Barbara Pfeffer Billauer

Institute of World Politics; International Program in Bioethics, U. of Porto; Foundation for Law and Science Centers, Inc.

Date Written: November 25, 2018

Abstract

Faced with an increase in sperm bank “accidents” – the lacuna of suitable legal redress begs to be filled. This article demonstrates for the first time that some harms imposed by sperm banks transcend merely violating personal goals of the parent and rights of the child. Thus, when sperm bank are in a position to prevent genetic defects from being transmitted -- and fail to do so, they infringe societal rights by saddling it with additional health costs for children born with genetic diseases. In addition to imposing a present public health burden, shoddy sperm bank practice which fosters transmission of genetic defects impairs the population gene pool and has longitudinal (i.e., multi-generational) consequences. Contributing to the problem is the lack of enforceable regulation regarding the number of “donations” the sperm supplier provides, allowing sperm “suppliers” to father hundreds of children. The current practice of anonymity further compounds the problem, while enriching the coffers of the sperm-bank industry.

The state of genetic knowledge makes it impossible to screen against all genetically-mediated diseases, and many would not even condone this objective. However, most people would agree that artificially tampering with the gene pool (even to produce positive results) is objectionable. Thus, when harms that but/for sperm bank carelessness or shoddy practice and lack of enforceable (international) regulation proliferate beyond what nature intended, some means for redress must be found, and sperm banks must be accountable for harms occasioned by their practices. With the rejection of damages for wrongful life, no effective means to do so currently exists. This article introduces the novel concept of using the theory of private right of public nuisance in such cases and establishes the factual predicate to do so.

Keywords: wrongful life, wrongful birth, wrongful conception, sperm banks, IVF, Parfit, Non-Identity problem, schizophrenia, genetic defects, public nuisance, private right, sperm bank industry

JEL Classification: A13, A14, F42, F51, H87, I11, I12, I15, I18, K13, K32, K33, M37, M38, Z18

Suggested Citation

Billauer, Barbara P., The (Sperm) Banking Crisis: A New Means of Legal Redress - or New Tricks for Old Torts (November 25, 2018). Available at SSRN: https://ssrn.com/abstract=3290147 or http://dx.doi.org/10.2139/ssrn.3290147

Barbara P. Billauer (Contact Author)

Institute of World Politics ( email )

1521 16th St NW,
Washington, DC
United States
+1 202-462-2101 (Phone)

International Program in Bioethics, U. of Porto ( email )

Rua Dr. Roberto Frias
4200-464 Porto
Portugal

Foundation for Law and Science Centers, Inc. ( email )

1020 16th Street NW
Suite LL1
Washington, DC 20036
United States
972 54 344 6055 (Phone)

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