Please draft a memorandum on each of the following two questions
• For EACH question, there is a 2000 word maximum length. There is no set allocation for sub-questions; allocate your responses as you see fit WITHIN each of the two questions, but be sure to give each question equal weight.
QUESTION #1:
Ann is a 42 year old woman with three healthy children, ages 19, 17, and 8. She learns she is pregnant and schedules an appointment with her obstetrician, Dr. Welby. Dr. Welby asks whether she has previously had “carrier testing” done, and she says yes. The doctor says “ok, then I don’t need to order any genetic tests for you.”
Ann’s first three children were from her first marriage. Her second husband, Francois, has a child from a previous marriage with mental retardation of unknown cause. His family is also from Quebec.
Dr. Welby orders first trimester screening, which indicates a slightly elevated risk of Down Syndrome. Her doctor says that “sometimes the results can be higher in women over 40” and everything is “probably fine” given that she already has three healthy children. The doctor tells her that women over 40 are at greater risk of Down Syndrome and that he can order amniocentesis, but that the procedure can cause miscarriage. Ann decides not to have amniocentesis.
Ann’s doctor performs ultrasound at 18 weeks. The ultrasound indicates that the fetus is a little small for gestational age, but otherwise does not show any other unusual findings. The doctor reports to Ann that everything “looks fine.”
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Ann gives birth to a baby who is diagnosed with Tay Sachs disease and other facial defects (including cleft palate) suggestive of a possible chromosomal abnormalities. When Ann and Francois meet with a geneticist, he asks more about Francois’ family history and finds out he is French Canadian He also does a complete genetic workup of Francois and finds out he carries an unusual chromosomal variation (a “balanced translocation” – in which a piece of one chromosome gets attached to another chromosome). He tests the baby and finds a chromosome with an extra piece on one end. He says this may explain some of the facial defects. The geneticist tells the parents that Tay Sachs is a fatal disease and that their child will likely die before the age of five. He cannot say what additional affect the chromosomal abnormality will have on the child’s prognosis.
Ann and Francois are terribly upset. They come to you asking you to sue Dr. Welby.
1) What causes of action do you assert in your complaint and based on what facts?
2) Dr. Welby also seeks your legal counsel. You anticipate a possible summary judgment motion where Dr. Welby’s counsel will claim none of the causes of action can survive: what defenses should you anticipate and how strong do you think they are?
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Ann goes for a routine physical with a new physician, Dr. Noa Z. Budy. She takes a complete family history and learns that she has a child with Tay Sachs disease. She tells Ann that Tay Sachs is a recessive genetic disorder and that her other children each have a 50% chance of being carriers. She tells her it is important for her children to understand this before they have children. Ann begins to cry and says “how can I possibly tell them this, it will be devastating!”
3) Dr. Budy consults you because she is worried about what will happen if Ann does not tell her children about their risks. She wonders whether she should tell them directly. What do you advise her and why?
4) Ann’s oldest child is surfing the Web one night and finds a Website that offers “carrier screening” for Tay Sachs disease. The Website says that all he has to do is order a collection kit, send in a sample of his saliva, and he will get his results via email in three weeks. He is considering having this test, but asks you, his friend who works at FDA, whether, in your expert opinion, he should get testing from this direct-to-consumer genetic testing company. What do you advise him and why?
QUESTION #2:
Your client is a single woman who has a 3 year-old child from her own eggs and anonymous donor sperm that she purchased through a sperm bank. She initially tried to get pregnant using artificial insemination, but when that failed, she used most of her life savings to attempt IVF with donor sperm. She was delighted when she not only got pregnant and delivered a daughter, but also had 1 frozen embryo remaining for a future attempt. She has always had a strong desire to have at least 2—and possibly more– children. Since she had only one frozen embryo remaining (and knows her Dr. would transfer 2 at a time if possible given current ASRM standards), she also purchased the 4 remaining vials of the donor’s frozen sperm from the sperm bank, to ensure she could either do more artificial inseminations or another IVF attempt if necessary and financially possible. The sperm, per standard sperm bank policies, is being stored at the bank until she is ready to have it shipped to her physician.
Now that her daughter is 3, toilet trained, and starting nursery school, your client is ready to try for her 2nd child. She was shocked to learn her donor has reportedly had a change of mind. He has contacted both her IVF physician and the sperm bank and explained that he is Jewish (one reason she picked him), has recently married, had a child with his wife, and become much more observant, and as a result feels very strongly that it is wrong to have a child born from his genetic material whom he is not fathering. He has instructed both the IVF clinic and the sperm bank not to release the embryo or sperm, and wants the embryo destroyed and the sperm returned to him. Your client is distraught.
1) Please identify, analyze, and evaluate the strength of your client’s legal claims to: 1) the embryo held by the IVF clinic; and 2) the sperm stored at the sperm bank. Please be sure to address any distinctions between the 2 situations, as well as the arguments the sperm donor may make on his behalf.
2) Consider what if any claims the 3 YO may have, or that a GAL appointed to represent her might bring, under these facts.
3) Now, switch hats—you represent: 1) the IVF clinic; and 2) the sperm bank, not the intended mother. Please analyze their respective legal positions, and advise each of them what to do with the embryo and the sperm respectively. Explain the legal theories behind your advice, and evaluate the strengths of their positions and any vulnerability they have.
4) The state where both the embryo and sperm are banked turns out to have just enacted a so-called “Personhood” law, stating that life begins at fertilization. Evaluate what, if any, impact such a law has on the various parties’ claims.
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