Are you serious? This woman used a sperm bank. The purpose of such a business is to guarantee that a woman (a paying customer) gets the sperm she wishes be inseminated with based on donor characteristics she values, not the sperm of some random guy. It is supposed to be less riskier than conventional conception. That’s what people pay for.
She should be compensated because the sperm bank failed to use the necessary safe guards implied with such a business. How much do I think would be fair? Enough to break the company and put them out of business so they can’t screw up like this again and to serve as a lesson to all other sperm bank companies that they better keep their accounts in order. Why should she get it, because she didn’t want a black child and despite her efforts she got stuck with one and is now dealing admirably with the situation. Yeah, I’ll say it that way. She went out of her way to avoid getting a kid that wasn’t white. She could have taken on a mixed-raced foster child and had the state pay her instead. She could have got inseminated for free in the restroom of the local pick-up bar. She didn’t take that route. She paid to review the sperm of her potential donors and select the sperm she wanted based on the the genetic characteristics that fit best with her life. The sperm bank screwed up. That screw up is negatively impacting her life. She should be compensated.
Are you serious?
No, really. Are you? I don’t think you are thinking this through.
I’ve spent 38 years auditioning men to be the father of my future children. Interviewing them in the form of dates, meeting their families, learning about their health, personalities, intelligence, and temperament. I’ve deliberated upon each one of these potential fathers–sometimes over a period of years–and asked myself if I could happily anticipate my gametes combining with theirs. The vast majority have not made the cut. Many of the guys look perfect on paper too.
But you’re saying the mating ritual most of humanity goes through inherently comes with more risks than
- Ordering some semen from a company of unknown reputation;
- sourced by a stranger who you only “know” from a survey that he could’ve fudged half the answers to in pursuit of a quick, painless buck;
- receiving a vial in the mail with some hand-written chicken scratch on it, that has probably passed through dozens of hands,
- and then blindly inserting the contents of this vial into my body, with only my faith “in the system” to protect me from human fallibility?
Maybe your definition is risk is different from mine, but all of this is risky to me.
Much of humanity does not go through the mating ritual you have described. Arranged marriages are much like business transactions in which non-disclosure of things like racial background are treated as very grevious. Love matches are usually based on emotions. Besides the whole point of going to a sperm bank is that the person doesn’t want to do this research. That’s what the business is for and this particular on failied spectacularly.
But what you are failing to understand is that what the customer is actually paying for is convenience. The plaintiff in this case presumably didn’t have a desirable male on hand that she could conceive with the old fashion way. Heterosex is not her bag and/or maybe she didn’t want the legal entanglements that come up procreating with a friend. So she hired a company to give her a male in a bottle. In exchange for this convenience, she incurred the risk that they might send her the wrong male-in-a-bottle.
Just like ordering clothes online rather than in-person increases the likelihood you’ll receive the wrong color or size, her decision to use mail order sperm increased her risk of having the wrong father for her child.
Not really, the customer is paying for a particular type of sperm based on qualities she has already determined. She hired a company to sell her a specific type of male in a bottle. They failed on that. Unfortunately there is no easy way of separating her DNA from the DNA she distinctly did not want mixed with hers at this point.
I threw this out there earlier and no one bit. If we were talking about an online pharmacist instead of a sperm bank, would you feel the same way? Let’s say the company sent her a product (e.g. prednisone) when she’d ordered something else (e.g. hydrocodone). Let’s also say the product she received was labeled prednisone, but because of her trusting nature she didn’t bother to check the label. She just opened the package and used it (like a lot of people would probably do…so I’m not saying this judgmentally).
Should the online pharmacy be on the hook for her adverse reactions to prednisone? I believe this is how the sperm bank will argue their case. “This product was labeled appropriately and we advise all of our clients to check the labels prior to use. Thus, it was ultimately the client’s responsibility to make sure this was the product she wanted before putting it into her body. In addition, any confusion regarding the identity of the product should have been cleared up by the client prior to using the product.”
I agree that the sperm bank failed to send her what she ordered. I don’t think they carry responsibility for the plaintiff’s own negligence though. They had one job to do that was independent from the job that she had to do, which was verifying the right stuff went into her body.
Yes. Absolutely and unequivocally yes. “Wrong drug” claims make up almost half of claims paid out due to pharmacy errors. See pages 24 and 25 here for more information. In fact, the more damage a patient suffers, the higher the payout. (Which brings us right back around to the question of whether this family has suffered actual damages, which is part of what her lawyer will have to prove in court.)
I’m curious as to how you know that the sample was labeled with the donor’s information. That must have been in a report I didn’t read. (Admittedly, I began skimming this thread a few pages ago, when “rational” debate went right out the window.)
Sperm ain’t drugs, and may not share the same legal responsibilities for dispensing, I don’t know. But for your analogy, it only strengthens the case against the sperm clinic.
I wasn’t implying that, nor is that a reasonable inference given the question was asking about how much MORE money she should arguably receive.
Well, glad to see you are doubling down on your irrational nonsense. Also, pretty happy that virtually none of this is likely to happen.
I disagree. Their likely argument will be very simple. There is plenty of precedent outlining that the damages cannot be claimed in cases like this where the plaintiff delivered a healthy baby. They will argue they have had a successful record otherwise, and have adopted new polices to avoid future errors. They will also state that while they regret the error, the damage sought are an offense to the court, and that the victim was given and refund and an apology.
How is being angry over not getting the product you ordered and paid for irrational? This woman basically has to choose between her family and her offspring because of a company’s mistake. Her life has just become a lot harder because of someone else’s carelessness. How is this any different from inflicting any other type of bodily harm to her?
Because the law doesn’t generally cater to the irrational prejudices of bigots and racists. But maybe they should because a biracial kid must be recognized as the tar baby she is.
Your report doesn’t give enough information to determine if we’re talking about the same thing. Dispensing the wrong drug and then slapping the “right” label on it is completely different than shipping a properly labeled drug to someone who has requested something else. Would you agree?
I’ve inferred it from the articles I’ve read on this subject, like this one.
A company that would send out unlabeled vials of semen to customers sounds unusual enough that I would question the judgement of anyone who’d use them. That would be up there in sketchiness as a “doctor” who pumps silicon people’s butts in their mama’s kitchen. I don’t think the plaintiff is that crazy, but maybe I’m wrong.
It is not irrational to want a child that resembles yourelf and your partner or that would be accepted by your family and friends. If this woman had wanted a biracial kid she would have choosen the sperm of an African-American man. She didn’t.
Which has nothing to do with this case. The issue is whether being the wrong race enables you to recover damages you allege as a result of living in a racist town and having a shitty family. It likely won’t.
That’s the way you’re looking at it. You have to take into consideration other people’s train of thoughts as well, not just your own. We’re all unique and different. You can also look at it as, they adamantly wanted a ‘white’ child and were denied that by the sperm bank’s incompetency and negligence. What their reasons are for wanting a white child or ‘not’ wanting a biracial child are of no concern to any of us and we shouldn’t be judging them for that. That’s their business and the sperm bank, who’s job was to give them a specific dna, failed them in that regard.
So in what situation do you think a sperm bank should be held liable if not for making this type of (very serious) mistake ? Are we supposed to just let it slide everytime they give someone the wrong donor sperm ? Some of you are letting your personal gripe with this lady cloud your arguments. She’s not suing for something trivial.
No, I would not agree because the law doesn’t agree. Pharmacists hold licenses to prevent such errors from occurring. Pharmacies have systems and policies and procedures in place to prevent such errors from occurring, and when those systems fail, they are liable for the errors that result.
Wrong medication is about as basic an error as it gets. It doesn’t matter that it’s labeled correctly - was this the medication that this patient should have been prescribed, at the dose the patient should be taking, for a condition that the patient has and that the prescriber is proficient in treating? If your doctor writes a prescription for something he doesn’t usually treat, the pharmacist is supposed to refuse to fill and call. If your doctor writes a prescription for something that the pharmacist doesn’t know you have, the pharmacist is supposed to refuse to fill and call. If the doctor writes a prescription for an unusual dose, the pharmacist is supposed to refuse to fill and call. Even if the doctor is adamant that he is prescribing 800 milligrams of Acetaminophen to be taken every 2 hours (which is a preposterous prescription that no one would actually intend for a human being, but sometimes doctors make exactly those kinds of errors and dig their heels in) the pharmacist has a duty to *not *fill it, or is liable for filling that prescription that will kill you. “The doctor said so,” is not a viable defense for pharmacists (or nurses.)
The pharmacist has to dispense the right drug, or she is in breach of Duty of Care. Doesn’t matter if she read the prescription wrong, or couldn’t read the prescription, or the stock bottle was filled with something else, or she grabbed the wrong bottle, or she mixed up two patients - all of those are *reasons medication errors happen, but none of them absolve the pharmacist of her Duty of Care. None of them are expected to be caught by the patient. Although of course any reasonable person will double check their meds, but legally, they aren’t expected to get it right, because the medical field views patients as nitwits who can’t be expected to know a single thing about medicine or medications. The pharmacist is expected to get it right.
*Not really related to the topic at hand, but…I’m (as a nurse) responsible for my patients’ medication *administration *errors, even if I wasn’t administering the medication. Even if I wasn’t *with *the patient when they took it. Even though I do home nursing and see the patient an hour a week and they’re considered independent at medication administration. Even if I told them the drug, dosage and time to take it and they forgot/ignored that and took too much or didn’t take it or took the wrong one at the wrong time. I have to document it and write an Incident Report with a Plan of Correction (preventing the error from happening again) even if the error happened a week ago and was entirely the patient’s fault and nothing bad happened to them, because lawyers. Nurses are responsible for medication administration the same way that pharmacists are responsible for medication dispensing. Even if the mistake wasn’t ours, the *responsibility *for the mistake is ours. Thank goodness more people don’t realize that, or my liability insurance would be even more expensive. :rolleyes:
It has everything to do with the case. All you’re doing is inserting your prejudices against this woman which is immaterial to the lawsuit.
No the issue is that she was inseminated with the wrong sperm as a direct result of negligence.
I have taken it into consideration. I just roundly reject a train of thought that attaches a child’s worth to their skin color. I know that must sound weird to you, but the law agrees with me.
It is “our” concern because she is asking essentially to overturn tons of precedent which rejects the idea that skin color is a condition on which damages can be assessed. You are essentially arguing that a court should value this child less than if she were 100% White.
Where would such a thing stop? Can I argue that accidentally killing a Hispanic kid isn’t as bad as killing a White kid because the latter will be more successful on average and because society loves them more? Can I sue my Black parents for wrongful birth? Should the courts just codify a racial value chart so that we know who exactly what everyone’s inherent worth is? Should sperm banks not accept Black sperm because it’s inferior, or accept lesbian customers because they cannot provide the most optimal home life for a child?
Mixing up sperm? They should be held liable for direct damages based on legally recoverable bases. That number should probably be low in the case a healthy kid because getting the wrong stranger’s sperm isn’t something that typically damages the parents.
Read the cases I cited. Why do you think they ruled that way?
No, I am saying the justification for damages as alleged in her complaint are baseless, and are not likely legally permissible.
Ideally it would be. It’s not because she has not made that alone the basis of her lawsuit.