Welcome to Ethics Consult -- an opportunity to discuss, debate (respectfully), and learn together. We select an ethical dilemma in patient care, you vote, and then we present an expert's judgment.
Last week, you voted on whether or not you believe a sperm donor should provide financial support for autistic offspring. Here are the results from more than 2,800 votes:
Should the sperm donor provide financial support to this cluster of children?
Yes: 87
No: 2,687
Should the sperm bank be responsible for damages instead of the donor?
Yes: 637
No: 2,123
Autism is not a disorder and no one should be sued.
Agree: 1,234
Disagree: 1,376
And now, Gregory Dolin, MD, JD, weighs in:
It is fairly well established that anonymous sperm donors are not financially responsible for the children who are their biological offspring. Of course, this approach makes sense to the extent we wish to permit anonymous sperm donation.
That having been said, while an anonymous sperm donor is not burdened with parental responsibility (financial or otherwise), he is not free to behave in an unreasonable fashion. All individuals are required to hew to a "reasonable person" standard in all of their affairs. (Of course, what's "reasonable" is dependent on circumstances).
Thus, to the extent that the donor knew that he had risk factors (an issue not addressed in the problem), his failure to disclose these factors can be viewed as unreasonable (if not outright malicious). In that case, the donor may well be held liable for the additional medical costs incurred by the family raising his offspring.
The analysis is similar with respect to the clinic. Their failure to run the tests could be viewed as unreasonable. On the other hand, the plaintiffs may have a hard time establishing causation even if failure to run the non-specific tests is unreasonable under the circumstances.
In other words, unless the plaintiffs can show that had the tests been run, they would have necessarily been abnormal (though not necessarily indicative of autism per se), and that being told of the abnormality, they would not have proceeded with implantation, they will not be able to establish all the required elements of their claim.
The bottom line is that although, as a default matter, no one will be liable for the additional healthcare costs, there may be circumstances where either the donor or the clinic or both may be held to have violated the standard of care and therefore be liable for these costs.
is associate professor of law and co-director, Center for Medicine and Law at the University of Baltimore, where he also studies biopharmaceutical patent law. His work includes a number of scholarly articles, presentations, amicus briefs, and congressional testimony.
And check out some of our past Ethics Consult cases: 'Freeze' Little Girl in 6-Year-Old Body?, Deaf Couple Only Wants Deaf Baby, or Critical Patient With DNR Tattoo.