Mother Accuses Sperm Bank of a Mixup
By RONALD SULLIVAN, Special to The New York Times
Published: March 9, 1990
A 33-year-old woman has sued a Manhattan fertility clinic and a sperm bank, charging that they mistakenly substituted another man's sperm for her husband's. The woman is white, as was her late husband; she said the donor is black.
And now, three years after the birth of her daughter, the woman says the girl, whom she describes as black, is being subjected to racial prejudice.
The woman, Julia Skolnick, said she and her husband had chosen a sperm bank for insemination because her husband, who subsequently died, suffered from cancer and they wanted his sperm protected from the damaging effects of radiation treatment. She said in her suit, ''As my husband's illness progressed, I decided that having his child was the bond that would link us forever.''
Instead, her lawyer said yesterday, her insemination ''became a tragedy and her life a nightmare.''
Blood Analysis Cited
Experts in tort law said they believed the suit, filed in October in State Supreme Court in Manhattan and disclosed yesterday, was the first of its kind in New York State.
In an affidavit, Ms. Skolnick, whose address could not be determined, said that after her child was born, ''it became apparent that she was not my husband's child.'' Her lawyer said a DNA analysis of the child's blood and remaining samples of the husband's sperm confirmed that the husband was not the child's father. The suit charges the clinic and the sperm bank with negligence and medical malpractice.
Documents in the case were ordered sealed by Justice Kenneth Shorter at the request of lawyers on both sides. The case was first reported yesterday in The New York Law Journal, and was confirmed by Ms. Skolnick's lawyer, David Gould, and lawyers for the defendants.
Mr. Gould declined to say how much she was seeking in damages.
He said that she ''loves her 3-year-old daughter very much'' and that the child's ''color has nothing to do with her anguish.''
But he said the child was the repeated target of ''racial teasing and embarrassment'' and ''she is determined that what happened to her and her daughter doesn't happen to any other couple.''
By contending that her daughter is a victim of prejudice, Ms. Skolnick is building a case for monetary damages.
Lawyers said Ms. Skolnick had delayed taking legal action because her husband, who died in April 1989, was suffering the ''painful agony'' of terminal cancer. They said she sued last fall when the ''racial taunting of her child became unbearable for her.''
According to lawyers on both sides, eight months after the couple were married in 1985, the husband was diagnosed as having Ewing sarcoma. The following year, fearful that radiation therapy would harm his reproductive organs, the husband provided several specimens of his semen to be used to impregnate his wife at a later date.
Two Defendants Named
Ms. Skolnick's suit named two defendants: Advanced Fertility Services, 1625 Third Avenue, which is run by Dr. Hugh D. Melnick, an obstetrician, and Idant Labs, a sperm bank at 645 Madison Avenue.
Robert T. Whittaker, a lawyer for Dr. Melnick, said Ms. Skolnick's husband had left a sample of his sperm at Idant before seeking fertility help from Dr. Melnick in April 1986. He said that Dr. Melnick performed the insemination with sperm provided by the laboratory and that a child was delivered in December 1986.
''The couple's dealing with the sperm bank was done independently,'' Mr. Whittaker said.
John R. Wright, the lawyer for Idant, declined to comment.
But Dr. Joseph Feldschuh, Idant's medical director, said, ''The sperm that impregnated the woman and which resulted in the birth of her child did not come from this sperm bank.''
Dr. Feldschuh said that his sperm bank had handled more than 100,000 semen specimens since it opened in 1971 and that not one had ever been misplaced.
Problem 'Elsewhere' Suggested
''If there is a problem, it must be elsewhere,'' he said, suggesting that a mistake might have been made at a sperm bank he said was maintained by Dr. Melnick. Mr. Whittaker, Dr. Melnick's lawyer, would not comment on that charge.
In a separate complaint filed with the New York State Department of Health, Ms. Skolnick contended that the sperm of her late husband had been mistakenly switched with the sperm of another donor.
A Health Department spokeswoman, Frances Tarlton, said the complaint was being investigated. She said all sperm banks came under state regulation last October by order of the State Public Health Council.
Idant's laboratory, which is separate from the sperm bank, was cited for deficiencies in July 1989, she added.
Legal Questions Raised
Prof. David W. Leebron of the Columbia University School of Law, an expert in tort law, said Ms. Skolnick's suit raised several legal questions.
The most common tort suits, he said, charge a ''wrongful death'' or injuries. However, he and insurance companies that provide medical malpractice insurance noted the increase in recent years of suits claiming damages for unwanted births.
http://www.nytimes.com/1990/03/09/nyregion/mother-accuses-sperm-bank-of-a-mixup.html