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 cause of 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 allowed, the claim 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.
Barbara Pfeffer Billauer, The Sperminator as a Public Nuisance: Redressing Wrongful Birth and Life Claims in New Ways (AKA New Tricks for Old Torts), 42 University of Arkansas at Little Rock Law Review 1 (2019).
First posted 2022-04-05 16:00:39
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