Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 11, 1990 TAG: 9003112626
SECTION: NATIONAL/INTERNATIONAL PAGE: A8 EDITION: METRO
SOURCE: New York Times
DATELINE: NEW YORK LENGTH: Medium
The woman is white, as was her late husband; she said the donor whose sperm she received was black.
Now, three years after the birth of her daughter, the woman says the girl, whom she describes as black, is being subjected to racial prejudice.
Prof. David Leebron of the Columbia University School of Law, an expert in tort law, said the suit raises several legal questions.
The most common tort suits, he said, charge a "wrongful death" or injuries. However, he and insurance companies that provide medical malpractice insurance noted the increase in recent years of suits claiming damages for unwanted births.
While New York courts have consistently awarded tort damages for injuries resulting from malpractice or negligence, they have not upheld suits that contend a birth or a life was "wrong" and thus a hurt for which someone can collect damages.
The woman said she and her husband had chosen a sperm bank for insemination because her husband, who subsequently died, had cancer and they wanted his sperm protected from the damaging effects of radiation treatment.
She said in her suit, "As my husband's illness progressed, I decided that having his child was the bond that would link us forever."
Instead, her attorney said, her insemination "became a tragedy and her life a nightmare."
Experts in tort law said they believed the suit, filed in October in State Supreme Court in Manhattan and disclosed last week, was the first of its kind in New York State.
In an affidavit, the woman said that after her child was born, "it became apparent that she was not my husband's child."
Her lawyer said a DNA analysis of the child's blood and remaining samples of the husband's sperm confirmed he was not the girl's father.
The suit charges the clinic and the sperm bank with negligence and medical malpractice.
Documents in the case were ordered sealed by Justice Kenneth Shorter at the request of attorneys on both sides. The woman's attorney, David Gould, and attorneys for the defendants confirmed the suit.
Gould asked that the woman not be identified and he declined to say how much she seeks in damages.
He said she "loves her 3-year-old daughter very much" and the child's "color has nothing to do with her anguish."
But he said the child was the repeated target of "racial teasing and embarrassment" and "she is determined that what happened to her and her daughter doesn't happen to any other couple."
Attorneys said the woman had delayed taking legal action because her husband, who died in April 1989, was suffering the "painful agony" of terminal cancer.
They said she sued last fall when the "racial taunting of her child became unbearable for her."
The woman's suit named two defendants: Dr. Hugh D. Melnick, an obstetrician of Advanced Fertility Services; and Idant Labs, a sperm bank. Both are in Manhattan.
Robert T. Whittaker, an attorney for Melnick, said the woman's husband had left a sample of his sperm at Idant before seeking fertility help from Melnick in April 1986.
He said Melnick performed the insemination with sperm provided by the laboratory and a child was delivered in December 1986.
"The couple's dealing with the sperm bank was done independently," Whittaker said.
John R. Wright, the attorney for Idant, declined to comment.
But Dr. Joseph Feldschuh, Idant's medical director, said, "The sperm that impregnated the woman and which resulted in the birth of her child did not come from this sperm bank."
Feldschuh said his sperm bank had handled more than 100,000 semen specimens since it opened in 1971 and not one had ever been misplaced.
"If there is a problem, it must be elsewhere," he said.
In a separate complaint filed with the New York State Department of Health, the woman contended the sperm of her late husband had been mistakenly switched with the sperm of another donor.
A Health Department spokeswoman, Frances Tarlton, said the complaint was being investigated.
by CNB