HARTFORD, Conn. (Legal Newsline) - Strangers who discovered through genetic testing they were half-siblings can sue the doctor they say substituted his sperm for that of their legal fathers, causing them mental anguish and possible medical problems.
Lower courts dismissed the lawsuit as a case of “wrongful birth,” a cause of action not recognized in Connecticut. But the Connecticut Supreme Court reversed the dismissal, saying wrongful birth only applies to cases challenging the very fact a person was born.
The plaintiffs here claimed the doctor was negligent by secretly substituting his sperm for what the mothers thought they were provided in in vitro fertilization procedures.
Kayla Suprynowicz and Reilly Flaherty discovered they were half-siblings on 23andMe in 2019. Two years later, they sued Dr. Narendra B. Tohan, a reproductive endocrinologist who assisted their parents with infertility treatments. They say Dr. Tohan substituted his sperm for the sperm of the men they believed to be their fathers without telling their mothers.
“The plaintiffs’ parents never agreed to the use of donor sperm, and no genetic testing was performed to ensure that the defendant was a suitable donor,” the Supreme Court said in a Jan. 14 opinion by Chief Justice Raheem Mullins. On appeal, the court accepts all plaintiff allegations as true.
Dr. Tohan first sought to dismiss the case as a medical malpractice claim that failed to meet state requirements because the plaintiffs failed to file the proper documents and because they were never his patients. The trial court rejected those arguments, so the defendant next argued the case was really a wrongful life claim, which is not recognized in Connecticut.
The trial judge agreed and dismissed the case on those grounds.
“Had the defendant not used his own sperm to inseminate the plaintiffs’ mothers, the plaintiffs would not have been born,” the judge said.
The plaintiffs appealed but the appeals court upheld the dismissal. In the meantime the Connecticut Supreme Court issued its decision in Lynch v. State, reinstating a $35 million jury verdict over a child conceived with allegedly contaminated donor sperm. That case distinguished wrongful life claims from ordinary negligence, saying in a negligence suit the plaintiff blames the defendant for causing a pregnancy and subsequent harms.
“Unlike wrongful life claims, in which ‘`the defendant bears no direct responsibility for the child’s condition’, in this case, the defendant is alleged to be responsible both for the pregnancies and the alleged harm,” the court concluded. “The plaintiffs alleged that the defendant’s unauthorized use of his own sperm to impregnate their mothers directly caused the harm of which they complain.”
David B. Newdorf represented the plaintiffs, while Thomas J. Plumridge represented the defense.