Family Law

Class Action Against NY Sperm Bank Asks What’s The Standard For Good Sperm?

Does adopting higher standards and new innovation open up clinics and practitioners to liability for their past use of old technology or standards?

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Last month, a complaint was filed in New York federal court alleging that sperm sold by a local sperm bank, Manhattan Cryobank, Inc. (MCB), likely contained genetic diseases. The complaint contends that sperm donated prior to November 1, 2014, was subject to subpar genetic testing, despite the sperm bank’s claims of thorough and robust screening, and that the pre-November 2014 poorly screened donor sperm continued to be sold until 2018 despite the probability that a number of the donors (estimated at 13 percent) carried significant disqualifying genetic diseases. Further, the complaint alleges that the sperm bank failed to disclose to purchasers that while the post-November 2014 donated sperm were, indeed, subject to advanced screening, if the purchaser happened to choose a donor from prior to November 2014, the donor had not undergone the advanced screening, and the purchaser was unknowingly gambling with the likelihood of the future child carrying or being affected by a significant genetic disease.

Of course, when couples conceive the old-fashioned way, the risk is even higher — unless those first dates involved a thorough questioning on family medical history and cutthroat disqualification when necessary. (New dating app idea!) But part of sperm banks’ draw and marketing tactics, with MCB as no exception, is the promise to purchasers that the genetic material they are choosing has undergone thorough screening and has been determined to be free of significant genetic disease.

Testing Gets Better All The Time — Fortunately

In good news for recipients of donor gametes, genetic testing continues to take giant leaps forward. The complaint describes how MCB switched from “complete blood count” (CBC) genetic testing to “next-generation sequencing” (NGS) in 2014. In deposition testimony by MCB’s CEO, the difference was explained by analogy: “[I]t is… like, you’re in a room, some genetic testing will come in and try to find keys and wallet in a room. The NextGen Sequencing, basically you turn on the light, you find the keys, you find the wallet, you find crumbs, you know, that the person ate last week, and all this other stuff.” After November 2014, MCB started turning on the light, metaphorically speaking, for its new incoming sperm donors. However, they did not go back and turn on the light for any of the pre-2014 donors. And MCB continued to sell the pre-2014 donated sperm without any warning of the difference.

I spoke with University of San Diego School of Law Professor Dov Fox, a friend of this column, on his perspective of the case. In a new book out this week, he spells out three categories of reproductive wrongs and corresponding rights. One of these he calls “procreation confounded.” It involves misconduct that gives people a baby born with different health, sex, or other traits than the ones they’d selected for. Professor Fox said that “in one sense, it’s straightforward case of procreation confounded. These prospective parents set out to have a child, one born free of serious disease, and yet they got one who is very sick — because of something the reproductive professional whose help they enlisted did (or in this case, didn’t do). But in another sense, it’s more complicated.”

Professor Fox explained that most of these cases turn squarely on the question of legal injury. But they present a problem. Can parents be said to be harmed because they got a different kind of kid than the one they wanted? But this case adds the layer of whether the sperm bank even did anything wrong. Did they breach their duty of care by failing to use the more reliable method to test disease? Was that required of them, as a matter of law?

What Standards?

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This case raises a basic question: what is the standard expected or legally required of sperm banks? The standards fall into an area of ambiguity that permeates the entire reproductive field. Does adopting higher standards and new innovation open up clinics and practitioners to liability for their past use of old technology or standards? We do want to encourage innovation and improvement, right?

Fox explains that this is not an isolated issue and it isn’t just about genetic testing. For example, is pen-and-paper labeling of samples okay, or must fertility clinics, egg vendors, and sperm banks adopt sounder identification procedures like electronic bar-coding? Can facilities that store cryopreserved embryos continue to use temperature-based measures like the ones that didn’t catch freezer failures last year in time to avoid mass embryo destruction, or must they incorporate high-tech scales that weigh liquid nitrogen levels to determine faulty variations much earlier? What if it’s customary for other professionals to use an older, less effective tool? Can professionals in the fertility field shift any obligation they might owe to their patients by informing them of the relevant risks and benefits? Especially if requiring the pricier equipment or procedures raise prices in ways that reduce access for patients who can no longer afford them? So many questions!

Are The Plaintiffs Asking Too Much?

The challenge of the case at hand will surely come from determining what is the appropriate, liability-avoiding level of care. And if the sperm bank is found liable for their testing practices, the next challenge will be to measure the damages.

But one request of the plaintiffs should be a no-brainer. In addition to punitive and compensatory damages and disgorgement of profits related to the faulty sperm, the plaintiffs request that the court order the bank: 1) to warn class members that the pre-November 1, 2014 sperm was not screened with NGS technology and may contain genetic defects or diseases; and 2)  cease and desist from offering sperm for sale without warning that it had not been screened with the latest technology. Those seem like pretty reasonable asks! Hopefully, in the meantime, sperm banks consider employing simple disclosure tactics when technology advances, but hasn’t always been applied in a way a purchaser may suspect. As for the rest, we will be following the case with interest.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

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