the Sperminator As a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts)

53 Pages Posted: 26 Feb 2019

See all articles by Barbara Pfeffer Billauer

Barbara Pfeffer Billauer

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

Date Written: February 13, 2019

Abstract

Faced with an increase in sperm bank “accidents” – the lacuna of suitable legal redress for sperm-bank imposed harms begs to be filled. This article demonstrates for the first time that some sperm-bank generated harms transcend violating the personal goals of the parent and the rights of the child. In addition, sperm bank errors infringe on societal rights by, for example, saddling it with health costs for children born with genetic diseases. Moreover, introducing inherited diseases into the gene pool in large numbers sets the stage for a public health crisis. To address these harms, I propose repurposing an old of cause action, the private claim of a public nuisance. This harm-driven approach expands the class of would-be plaintiffs, broadens the spectrum of allowable claims, and bypasses restrictions imposed by traditional negligence law. Insofar as punitive damages are also allowed, the claim also has the potential to act as a deterrent of a host of sub-par sperm bank practices. I also discuss the implications of holding the sperm bank to fiduciary standards.

Keywords: wrongful life, wrongful birth, sperm bank, infertility, genetic harm, nuisance, fiduciary

JEL Classification: I1, I12, I14, I18, I131, K40, K41

Suggested Citation

Billauer, Barbara P. and Billauer, Barbara P., the Sperminator As a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts) (February 13, 2019). Available at SSRN: https://ssrn.com/abstract=3333787 or http://dx.doi.org/10.2139/ssrn.3333787

Barbara P. Billauer (Contact Author)

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

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4200-464 Porto
Portugal

Institute of World Politics ( email )

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

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