By Professor Leslie Francis
Information has recently come to light through genetic testing about a case of apparent sperm switching at a laboratory in Utah. The laboratory, now defunct, was a joint operation of Reproductive Medical Technologies, Inc. (RMTI) and the University of Utah. At least one case has been identified in which the child of parents treated at the laboratory appears through genetic testing to be the genetic offspring of an RMTI employee. It is unknown whether other such cases exist. The University is investigating, http://healthcare.utah.edu/community-lab-facts/.
While rare, cases such as this illustrate the importance of distinguishing so-called “wrongful conception” causes of action from causes of action in which the damage claim rests on the failure to terminate a pregnancy. Wrongful conception causes of action claim that parents were harmed by the conception and subsequent birth of a child. Examples of wrongful conception causes of action that do not allege failures to abort include an improperly performed tubal ligation or vasectomy, negligence in contraception prescription, or negligence in pre-conception genetic testing or counseling when the parents might otherwise have chosen to use donor gametes, e.g., Molloy v. Meier, 679 N.W.2d 711 (Minn. 2004). Utah has recognized a cause of action for wrongful conception in a case in which a patient was negligently informed about a sterilization procedure’s efficacy, C.S. v. Nielson, 767 P.2d 504 (Utah 1988).
Damages in such cases are notoriously difficult to understand: the objection is that parents cannot be damaged by the presence of a loved, albeit unplanned-for child, e.g. Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc., 108 Ohio St.3d 494, 844 N.E.2d 1160 (Ohio 2006) (Ohio law allows damages for the costs of pregnancy and childbirth but does not allow recovery of economic or non-economic damages for the costs of raising a child with disabilities). Some jurisdictions allow parents to recover emotional damages for the birth of a child with a disability, e.g., Rich v. Foye, 21 Conn. Supp. 11, 976 A.2d 819 (Conn.Super. 2007). Some also allow recovery for the additional costs of raising a child with a disability, e.g. Clark v. Children’s Memorial Hosp., 2011 IL 108656, 955 N.E.2d 1065 (Ill. 2011). In Utah, recoverable damages include emotional distress and the costs of pregnancy and delivery, but not the costs of raising the child, C.S. v. Nielson, 767 P.2d 504 (Utah 1988).
Under Utah law, “a cause of action may not arise, and damages may not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.” Utah Code § 78B-3-109(2) (2013). Although such statutes are sometimes characterized as prohibiting wrongful life and wrongful birth causes of action (respectively, causes of action based on the child’s claim that it would have been better not to have been born and the parents’ claim for the costs of raising a child who otherwise would not have been born), this law only bars damages when abortion would have been the chosen alternative. It does not bar damages that might be associated with conception itself, such as any emotional distress or needs for mental health counseling experienced by the parents or the child as the result of a sperm switch.