Many questions surround the issue of legal liability when a child produced through AID inherits a genetic disease or defect from the sperm donor. One such question is whether the sale of human sperm constitutes the sale of a product, potentially subjecting sperm to products liability law. This question, in turn, begets many more questions-both legal and normative-that must be considered before determining whether products liability law is an appropriate mechanism for regulating artificial insemination: Can an AID recipient and her spouse bring a products liability action against the physician administering AID, the sperm bank, or the sperm donor? Can the resulting child bring such a claim? Can an anonymous sperm donor be held liable for “manufacturing” a defective product? Should he be liable if he had no reason to know of his condition? Is strict liability in tort an appropriate remedy where a genetic defect is extremely rare, impossible to diagnose, or undiscovered at the time of insemination? Should an AID recipient alone bear the expense of raising a child with a severe genetic defect where other parties profited from the creation of the child?
This Comment attempts to answer these and other questions regarding the possibility of regulating AID through products liability law. Part II of this Comment provides an overview of products liability law and the history of artificial insemination in the United States. Part II also discusses Donovan v. Idant Laboratories, a case in which a mother and child brought a products liability action against a sperm bank based on a genetic defect inherited by the child from the sperm donor, introducing the possibility of treating sperm as a product.25 Part III analyzes the potential success of products liability actions for genetically defective sperm. Part IV argues that strict products liability is not an appropriate response to the risks of artificial insemination and instead suggests that courts apply a shifted burden of proof to claims brought in negligence. Part IV further suggests the need for a national donor database. Part V concludes.