Reproductive technology has advanced quickly and significantly and the good news is that the gift of a child is widely available to single people, to gay people, to people who try hard but cannot conceive a child for a myriad of reasons. The bad news is that the florescence of fertility clinics and sperm banks has created risks and preventable problems which include genetic abnormalities which are passed to the children of sperm donors as a result of inadequate or nonexistent evaluation of sperm donors by the sperm banks, transfer of the wrong embryo to patients of fertility clinics due to poor protocols and inadequate supervision in the labs, loss of embryos and eggs due to equipment failure and/or inadequate oversight, creation of embryos by utilizing the wrong sperm to fertilize eggs and then transfer of those embryos so that the patient gives birth to a baby who is not the baby they planned to have, loss of embryos which were intentionally but improperly discarded or destroyed by the fertility clinic.
The list is not exhaustive but I have handled more than one case in each category since I started handling fertility cases almost 20 years ago. My first fertility case arose as a result of the fertility clinic physician who was responsible for the transfer of an embryo created for and by my client transferring someone else’s embryo. He knew he made this mistake immediately after he transferred the embryo and while the patient was still in his office but he did not tell her. Instead, he prescribed medication which he told her was intended to increase the odds that the embryo would implant and she would become pregnant. The medication was actually intended to prevent implantation and pregnancy. He knew he did this and his staff knew he did this but no one told my client. She became pregnant and gave birth to a child whom she loved and raised alone until he was two years old. Suddenly, the dr. and his embryologist appeared at her home and told her the child was not hers but was the child of another couple who had been clients at his clinic. They gave her this shocking news because a staff member of the clinic had reported the conduct of the physician to the Medical Board after years of feeling guilty about the well-kept secret and the Medical Board was conducting an investigation. They told her the couple whose embryo she had carried to term had a girl who was the full sister of her son, the boy she had raised and love for two years and that she would love them if she agreed to meet them. She agreed and they all met in a park. Right after the meeting, the other couple served her with papers seeking custody of the boy she loved. I was able to resolve the case against the doctor and the clinic for significant compensation and the doctor lost his license to practice in California. But the Family Law case handled by a family law lawyer did not have such an appropriate result: the judge in the Family Law case ruled that he considered the baby the result of a one-night stand case so that the two families would have joint legal custody of the boy who would spend half his time with the couple whose embryo was used and the mother who had given birth to him and raised him! No one was happy with the result and it created a union of very different families who had not chosen to share a child.
Since that time, I have represented many families with stories of surprise, sadness, loss and distress when all of that was completely preventable:
There was, and is, the sperm bank which promoted a “donor” they said they had completely vetted as handsome, a Ph.D. candidate in artificial intelligence with degrees from the University of Georgia, an IQ of 160 and a clean bill of health. His sperm was sold and promoted and he was described by the bank on line and on the phone as one of the best donors they had. The promotion was very successful as, according to the sperm bank, he had at least 36 offspring in 2014. The bank accidentally copied him on an email to one of the mothers of his offspring who was part of an online group of mothers of his offspring and, within 5 minutes of googling his name on line, she learned that he was schizophrenic, an ex-felon, and had not graduated from college, information that was easily found by her and could have been found by the sperm bank if they had only looked. I have represented 13 families to date with children of that “donor” and now represent 10 families of another donor with genetic abnormalities passed to his offspring that could have been, but were not, observed by the physician who is charged with examining every “donor” according to the sperm banks website representations.
There was the family that recently learned that their husband and father had multiple children by another woman who found them through 23 and me. The doctor had “repurposed” the sperm of our client, whether intentionally or negligently, to impregnate a woman who was at the clinic for intrauterine insemination. Quite a surprise and more than a little distressing.
There is the fertility clinic which, unbeknownst to its patients, was partially acquired by a hedge fund which began to operate the laboratory where eggs and embryos were cryopreserved by staffing it with lay people instead of medically-trained as before the acquisition. One of the tanks failed and no one noticed in time to save the contents. Many people lost their future hopes and dreams with the loss of eggs and embryos: couples who had preserved embryos before cancer treatments which destroyed fertility; women who had preserved their eggs to create future pregnancies who were now too old to undergo egg retrieval, people who had preserved embryos to enlarge their families with additional in vitro fertilizations.
These are only a few of the examples of mistakes which were preventable but which lead to loss and distress for the victims of those mistakes.
Litigation has been fruitful and interesting. In most jurisdictions, the cases have been successfully resolved. In Georgia which is the home of the sperm bank discussed above, the cases filed in Georgia because of the legal requirement to do so in certain of the cases, have been uniformly dismissed and we have appealed the dismissals. Just this week the Georgia Supreme Court heard one of our cases and the hearing was exciting and gave us hope as the Court examined the attorney for the defendant sperm bank on the matter of why and how they can sell sperm on the basis of misrepresentations relied upon by the purchasers and have no responsibility at all. You can view the argument at gasupreme.us/watch/.
Go to Norman v. Xytex, May 21, 2020. We are holding our breath for the opinion which we hope will open the door to sperm bank liability. The law is this area has yet to catch up to the technology but it is getting there. It is an exciting subject area for practice.