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What happens when a sperm bank does not properly screen its donors?

Many people turn to sperm banks to help them create or complete their families: single parents, lesbian couples, heterosexual couples experiencing infertility… Sperm banks offer the peace of mind of rigorous medical/genetic testing, and also the anonymity many parents prefer.

Since 2004, with the introduction of the Assisted Human Reproduction Act, it has been against the law to pay sperm donors in Canada. Not surprisingly, there are now very few donors. This has led many Canadians to purchase (import) sperm from other countries.

Unfortunately, there have been a few recent cases in the media about foreign sperm banks deceiving parents.

One Ontario couple is suing a Georgia sperm bank because the donor profile was allegedly falsified. The couple reportedly claims they were told their donor “had an IQ of 160, a bachelor of science degree in neuroscience and a master’s degree in artificial intelligence, and that he was working on his PhD in neuroscience engineering”.

After what appears to have been a privacy breach by the sperm bank, the couple discovered the name of the donor. They performed their own research and learned “that he is, according to the suit, [a person with schizophrenia], had dropped out of college and had been arrested for burglary, and that his pictures had been doctored”.

One of the challenges about this kind of case is that while the sperm bank or donor may have acted in a fraudulent manner, what damage has the couple or child suffered? According to one article, the parents are seeking damages for “pain, suffering and financial losses” because the clinic “engaged in fraud, misrepresentation, negligence and battery”. However, if they have a healthy child, it could be difficult to demonstrate that they are owed a large sum of money. Even if the child has a predisposition to criminal activity or mental illness, personalities are complex and these predispositions may never materialize. Courts do not typically make judgments based on speculation. Perhaps the fear that the child may, in the future, develop unfavourable qualities or a serious illness is something the parents will have to live with each day. And if so, how do we quantify that fear?

In a similar case, several families are suing a Danish sperm bank after a donor with a serious genetic condition passed the screening – and his sperm was used to father 99 children. Some of the children have been diagnosed with the condition. In contrast to the case above, this makes the outcome of the error much more demonstrable.

At the same time, it is possible the Danish clinic performed testing and that the donor slipped through the cracks in a non-negligent manner. Perhaps the clinic even met its professional standards (which can legally be met even when errors occur). The Georgia sperm bank, on the other hand, has been accused of conduct that appears to be more intentional in nature. It is possible that the intentions behind the screening failures – and not just the outcome of the error – will play a significant role in any decision.

Finally, yet another challenge in these cases is the line of argument that parents likely struggle with most – to suggest that had certain information been available to them that they never would have had selected the donor they used (ie. had their children at all). This is incredibly difficult to argue as it is balanced alongside the fact that they very much love their children. It can be an awkward balance to send one message to the court, and a very different message to your child.

Likewise, parents in these cases also struggle with managing the messages their children may hear about the likelihood of developing a particular illness in the future. The parents will want the court to hear the highest probabilities and the worst of the possible symptoms their children may develop, but protect their children from the very same information.

Balancing their roles as parents and plaintiffs will be no easy task.

UPDATE: In October 2015 it was reported that the case was dismissed because Georgia law does not recognize wrongful birth lawsuits.

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