A sperm donor suing a Portland, Ore., fertility clinic can pursue damages for emotional distress resulting from the mistaken insemination of a woman with sperm intended for his fiancée, a judge has ruled.

The suit is one of two that the man, identified only as MH, filed over the sperm sample mixup. He deposited the sperm in September 2005 to impregnate his fiancée, but staff at the Oregon Health & Science University clinic allegedly gave it to another woman, who subsequently gave birth to a child.

Multnomah County Superior Court Judge Henry Kantor has said MH cannot proceed with a paternity action to establish that he is the biological father of that child. But in the separate, $2 million wrongful insemination case against the clinic, he denied motions to dismiss negligence and conversion claims.

The clinic's failed arguments in what could be a landmark case included the following:

• MH does not have a claim for negligent infliction of emotional distress because OHSU did not perform a medical procedure on him. “[I]f anyone, it is the treatment of plaintiff's fiancée that is implicated by those allegations, not plaintiff himself,” the motion said.

• The demand for $2 million in damages for loss of use of the plaintiff's sperm is “frivolous” since he cannot allege that “he is or was incapable of producing more sperm of the same quality as that 'lost' by the defendants.”

• A conversion claim requires a showing of intent by OHSU to misuse the sperm, but “There are no allegations, nor can there be, that defendants intentionally inseminated the wrong woman.”

Unfortunately, Kantor gave no explanation for his order except to say that the value of MH's sperm “is an evidentiary question rather than a pleading question.” He did dismiss a breach of contract claim while allowing the plaintiff to amend his complaint.

In the paternity action, MH could not overcome an Oregon statute which says a sperm donor has “no right, obligation or interest with respect to a child born as a result of the artificial insemination.”

Litigation over a fertility clinic mix-up which resulted in a couple's child being conceived with the wrong man's sperm is also pending in New York. A judge ruled in March that the couple could seek emotional distress damages for the “continuing uncertainty and distrust as to whether the genetic material of either or both of them has been inappropriately used for others.”