Reply assist: Sean

The sale of sperm should not be considered a sale of a product because what is being purchased is the end result of a biological process, not a tangible product with inherent monetary value. Classifying sperm as a product effectively categorizes human life as having a market price. Instead, the purchase of sperm should be seen as acquiring a service provided by the sperm bank to facilitate conception, which inherently carries risks (Kubasek et al., 2023). Although tests can reduce the risk of genetic abnormalities, the sheer number of sperm per sample means that there is always a margin for error.

Under tort law, to hold a company liable through strict product liability, one must define the product and its intended use (Kubasek et al., 2023). In Donovan v. Idant Laboratories, the New York courts found no specific exemption for human tissue like sperm, allowing it to be treated as a product under New York law (Donovan v. Idant Laboratories, Case No. 08-4075, Memorandum and Order (E.D. Pa., Mar. 31, 2009)).

However, this liability can be defended under the assumption of risk (Kubasek et al., 2023). There is an acknowledged risk in conceiving a child, including the potential for birth defects. Unless the sperm bank guarantees a 100% success rate for healthy children with each purchase, they should not be held liable for genetic defects