A prospective father has filed what could be a landmark case of mistaken insemination, claiming a Portland, Ore., fertility clinic used the sperm he intended for his fiancée to get another woman pregnant.

The plaintiff, identified only as MH, was “deprived of an opportunity to have children with this sperm,” says the complaint, which raises such tricky issues as whether a man who can still reproduce suffers an injury if his sperm is misused and whether the misappropriation of sperm is compensable under property law.

MH seeks at least $2 million in damages for emotional distress and the loss of his sperm which, he says, “were of special value.” The suit includes a claim for conversion, a tort that applies to the unlawful appropriation of another's property.

“It's still not settled in most jurisdictions that sperm is property capable of conversion,” says Judith D. Fischer, a law professor at the University of Louisville who has written about the misappropriation of genetic material.

The wrongly inseminated woman had a child and MH has filed a separate paternity action. “He just wants to know if he is the father,” says his attorney, Jane Paulson (Paulson Law Firm, Portland).

According to MH, he deposited sperm at an Oregon Health & Science University clinic for use in inseminating his fiancée. But in September 2005, he alleges, the clinic

negligently used [the] sperm to inseminate a woman who was not MH's fiancé presumably causing that woman to become pregnant.

The sperm, moreover, “was the property of MH,” the suit says, and the defendants “wrongfully converted [it] by inseminating a woman other than his fiancé.”

A Portland jury in 1997 awarded $1.25 million to Robert Eubanks, a cancer survivor who suffered the loss of sperm he had banked at a hospital for starting a family. The sperm in that case was irreplaceable since chemotherapy treatment had left Eubanks sterile.

MH, on the other hand, has not lost the chance to get his fiancée pregnant. But Fischer can see him making the argument that “he doesn't want children out in the world that he never intended to have.”

“The problem is getting the law to recognize that there is an injury,” she adds.

While there is no case law directly on point (see table below), a California appeals court ruled in Hecht v. Superior Court, 16 Cal.App.4th 836 (1993), that the frozen sperm of a dead man satisfied the “property” requirements of the Probate Code. Other courts have allowed conversion claims in cases involving a frozen embryo and human cell lines.

Fischer said in a law review article that “The misappropriation of eggs and embryos ... involves an injury to aspects at the very core of human dignity, sexuality and reproduction.” MH may have to show that the loss of sperm was a similar affront to his dignity.

By Matthew Heller
9/20/06