Oops, “Fertility clinic gave sperm to wrong woman”

“Fertility clinic gave sperm to wrong woman”

Legally, this one is a grey area.

PORTLAND, Ore. (AP) — A fertility clinic that gave sperm to the wrong woman is now defending itself from a donor upset over the pregnancy.
A man receiving treatment at the Oregon Health & Science University clinic was attempting to father a child with his fiance when he gave a sperm sample to clinic workers in September 2005.
In a $2 million lawsuit filed last week in Multnomah County Circuit Court, the man claims his sperm was given to a woman who was to receive sperm from an anonymous donor and she became pregnant.Now he is seeking damages for “worry and emotional distress.” His emotional distress is whether the legal system, now that he is identified, will now decide he has to provide child support.

“He’s upset because a woman other than his fiance has possibly had his child,” said Jane Paulson, the man’s attorney. “My client feels deceived.”

Deceived? Maybe, but that isn’t a word I would use.

Clinic workers told the man – who also has remained anonymous – they had dropped his sperm sample and needed another one, according to the lawsuit. To compensate for his trouble, he was told he would not be charged for the visit.
Several months later, a letter from OHSU asked the man to come in. He was informed that his first sample had been given to another woman, Paulson said.

Obviously a mistake was made. The crazy issue here not discussed is the biological father’s responsibility under federal law since he is no longer so anonymous (relating to welfare laws). Really, the intelligent solution for the man is to sue in this case to stop future lawsuits, too bad.

Meanwhile there is a child. Rejoice in that.

FILED UNDER: Law and the Courts
Richard Gardner
About Richard Gardner
Richard Gardner is a “retired” Navy Submarine Officer with military policy, arms control, and budgeting experience. He contributed over 100 pieces to OTB between January 2004 and August 2008, covering special events. He has a BS in Engineering from the University of California, Irvine.

Comments

  1. legion says:

    His emotional distress is whether the legal system, now that he is identified, will now decide he has to provide child support.

    Actually, this is a very reasonable concern, depending on his state’s laws. Parental responsibility issues can be quite difficult to sort out.

  2. I’m not sure that the mother could do much about the issue of inheritance either. If he dies intestate, or his will is challenged by the child, that can create another problem (though obviously he wouldn’t be around for the last act of the problem). The mother could probably agree to a quit claim that would release him, but no one but the child can give up the child’s right. And that can’t happen until the child is an adult.

    The other side is he may feel a moral obligation to the child. He did biologically father the child. Of course, someone going to a clinic as part of trying to get his fiance pregnant may have a different moral compass.

    This seems to clearly be a case of malpractice on the part of the clinic. The real question is what the damages are. It would seem to me that the best solution is that the clinic assumes all legal liabilities that might arise from the incident, including legal expenses. Then if he gets served papers for child support, he can just nod, hand them to the clinic and let them handle things. If his will is contested, the clinic (or more likely their insurance company) would have to pay for the lawyers to fight it out.

  3. Rodney Dill says:

    Hillary will really go off the deep end when she finds out about this one.

  4. Steve Verdon says:

    Actually, this is a very reasonable concern, depending on his state’s laws. Parental responsibility issues can be quite difficult to sort out.

    I agree completely. I’d sue so that the clinic was financially destroyed and that I would be sure to have enough money to pay the mother. I’m so cynical about this issue that I’d take the view of not if I’d end up paying child support, but when and how much.

  5. Kent G. Budge says:

    I understand the concern about child support. Given that family law heavily emphasizes the welfare of the child (and appropriately so, in most cases) it’s not hard to imagine a court ruling that the unwilling father owes child support.

    On the other hand, I would be very surprised if a woman seeking to become pregnant by an anonymous donor wasn’t required to waive any paternity claims on the father. I think it could be argued that this waiver is not nullified merely because the identity of the donor has become known. If so, the fact that the donor was unwilling, and the clinic screwed up, becomes moot. And my gut tells me this is the right resolution of the matter.

    But I am not a laywer.

  6. Steve Verdon says:

    On the other hand, I would be very surprised if a woman seeking to become pregnant by an anonymous donor wasn’t required to waive any paternity claims on the father.

    You’d better check that law on these kinds of thing before becoming a donor. You can supposedly sign all kinds of waivers, but they almost never prohibit one from legal action. My guess is that even if she did sign such a document it wouldn’t stop her from going after the donor.

    If so, the fact that the donor was unwilling, and the clinic screwed up, becomes moot. And my gut tells me this is the right resolution of the matter.

    But I am not a laywer.

    Sure it is probably the right way to resolve the issue, but as you note your not a lawyer. Toss in a few of those and all bets are off, IMO.

    I understand the concern about child support. Given that family law heavily emphasizes the welfare of the child (and appropriately so, in most cases) it’s not hard to imagine a court ruling that the unwilling father owes child support.

    I wonder how she’d feel if he sued for at least partial custody on the grounds that she stole his property.

    Actually, this could be a good strategy to reduce the likelihood of having to pay child support. Threaten to sue over such things as where the mother can live, where she can move to, etc. As one of the parents, the father can constrain her actions on the grounds that he too has rights to spend time with his child. Such prospects might be enough to disuade her from going for what appears to be some easy cash.

  7. Eneils Bailey says:

    Five years ago my friend made a donation of sperm to a woman. He did not use a fertility clinic, he made a direct deposit. His ex-wife has since remarried and he pays child child support to both women.

  8. Kent G. Budge says:

    You’d better check that law on these kinds of thing before becoming a donor.

    I’ll stay with direct deposit to my wife. 😉

    I think a strong moral and prudential case can be made against donating sperm to anyone you’re not married to. Admittedly, this wouldn’t eliminate mistakes of the sort described here, and might not rule out a subsequent lawsuit.

    It does seem to be the case that a significant fraction of the lawyering profession is devoted to finding ways out of contractual arrangements that haven’t turned out as well as one of the contracting parties hoped. And I suspect that few family courts would have any qualms about putting “the welfare of the child” ahead of even the most clear and explicit contractual arrangement. As I noted before, the emphasis on the child’s welfare is usually appropriate; but perhaps the pendulum needs to swing back a bit.