A New York couple have moved a key step closer to recovering emotional distress damages for an “almost unimaginable” fertility clinic mixup which resulted in their daughter being conceived with the wrong man's sperm.

Thomas and Nancy Andrews received in-vitro fertilitization treatments at New York Medical Services for Reproductive Medicine. After their daughter Jessica was born in October 2004, they discovered to their horror that Thomas was not the biological father.

According to the couple's negligence suit, embryologist Carlos Acosta used an unknown donor's sperm to fertilize Nancy Andrews's eggs. “[W]hile we love Baby Jessica as our own, we are reminded of this terrible mistake every time we look at her,” the parents said.

Thomas Andrews is white and his wife is Dominican; Jessica has darker skin with “characteristics more typical of African, or African-American descent.”

Ruling last month on motions to dismiss, Manhattan Supreme Court Justice Sheila Abdus-Salaam said the Andrewses “cannot recover [damages] for mental distress arising from having a child who is not Mr. Andrews' biological offspring.”

New York does not recognize a claim for “wrongful life” or “wrongful conception,” she noted in her order, and "The birth of an unwanted but otherwise healthy and normal child does not constitute an injury to the child's parents.”

But Abdus-Salaam did allow the plaintiffs to seek compensation for their “continuing uncertainty and distrust as to whether the genetic material of either or both of them has been inappropriately used for others.”

“[W]here the Andrews ... have been provided with absolutely no explanation as to ... what was done with the sperm that [Thomas] provided to the clinic for the sole purpose of conceiving a child with his wife,” the judge explained, they are entitled to “recover for emotional injuries absent the presence of physical injury.”

A trial on the issue of damages against Acosta, the clinic and the clinic's owner has been set for June 7. “Defendant Acosta has remained mute as to what, if any, steps he took to ensure that he was fertilizing Mrs. Andrews' eggs with Mr. Andrews' sperm,” Abdus-Salaam said in granting summary judgment on liability against the embryologist.

In another case of fertility clinic clumsiness, an Oregon man alleged last year that the sperm he intended for his fiancée was used to get another woman pregnant. Clinics in Arizona and Illinois have been sued for losing or destroying pre-embryos.

By Matthew Heller
4/15/07

An Ohio jury has awarded $786,760 to a man who suffered a severe injury to his left testicle while he was exercising at a YWCA gym in Akron. A cable on a leg-extension machine broke, causing a steel bar to swing into his groin.

"It's a horrendous injury. Everyone who hears his story just kind of winces," the plaintiff's attorney said. Houston v. YWCA of Summit County.

4/15/07