Caveat Vendor: Potential Progeny, Paternity, and Product Liability Online
Swink, Dawn R., Reich, J. Brad, Brigham Young University Law Review
Recently a fifteen-year-old boy decided to track down his genetic father.1 He sent a swab of his own saliva to an online DNA lab.2 He waited nine months for initial results to return.3 He then gathered additional information from his mother about his sperm donor father (year of birth, hometown, and surname) and commissioned an online investigation service to determine the true match.4 Within ten days, the boy met his biological father.5 Is this an isolated case? No. With the recent explosion of genetic inheritance information available on the Internet, any sperm donor, including the average undergraduate student who "trades his sperm for beer money," could be found just as easily.
This Article contends that the Internet has increased the availability of, and the market for, donor sperm to a larger audience than ever imagined, resulting in significant and previously unimagined problems and concerns. Medical technology and the Internet have combined to make the identity of any sperm donor6 more readily available, lifting the cloak of anonymity that many donors once enjoyed.7 While a sperm donor's identity is much more ascertainable, his legal liability for both paternity and product-the donated sperm-is uncertain. This uncertainty implicates important legal issues, especially as the "first generation"8 of Internet sperm donor fathers and their children begin looking for each other online. Part II of this Article recognizes that reproduction most often results from coitus between opposite sex parents, but also shows that the three most popular methods of artificial insemination account for more than one million births worldwide and that this number is likely to increase. Part III discusses the Internet's impact on assisted reproduction. The Internet has increased the level of information available on virtually any subject,9 and more significantly for purposes of this Article, it allows prospective buyers and sellers to locate each other and engage in commerce with previously unheard of speed and convenience. As a result, finding a sperm donor, seller, or the identity of a sperm donor or seller, is quite simple.10
Part IV reviews statutory regulations on sperm and sperm donors. Although the federal government classifies sperm as a tissue, its regulation of the sale and distribution of sperm is limited only to detecting communicable diseases prior to insemination. In addition, the majority of states have no laws addressing sperm or sperm donors. As a result, the buying or selling of sperm is virtually unregulated.
Part V discusses "known," "unknown," and "identified" sperm donors, and the potential liability of each category. Specifically, this Part addresses whether or not donors and recipients can contract away potential child support obligations. We will see that there is no uniform answer and, as a result, piecemeal equitable remedies are used to provide a subjective, "fair as they see it" ending, regardless of the parties' intentions, promises, or contracts.
Finally, Part VI shifts the focus from paternity liability to product liability. Specifically, this Part addresses potential breach of contract, strict product liability, and negligence causes of action against online sperm sellers. The Article concludes with four specific recommendations to reign in the unknown liabilities of selling sperm online but, until such time as those recommendations are implemented, sperm donors and sellers are wise to heed the maxim, caveat vendor.11
II. IN THE BEGINNING . . .
Traditionally, conception occurs through intercourse between a male and female. Assisted Reproductive Technology ("A.R.T.") is the umbrella term applied to the various medical technologies used to create conception through means other than coital reproduction. A.R.T. developed, and is developing, because an increasing number of people cannot conceive a child through intercourse.12 While A.KT. covers a broad spectrum of reproductive strategies,13 three are most common. …