A Georgia sperm bank has prevailed before the Georgia Court of Appeals in a case where a couple sued the company for not divulging that one of its donors was a fraud.
The lawsuit brought by Wendy and Janet Norman is one of a number filed against Xytex Corp., which has offices in Atlanta, Augusta and Athens. The Normans' son, identified in the litigation by his initials A.A., was born in June 2002.
The couple's suit said Xytex told them that Donor #9623 had an IQ of 160, a bachelor of science degree in neuroscience and a master's degree in artificial intelligence. He was also said to be working on his doctorate in neuroscience engineering and had a clean mental health history with no criminal background.
Instead, Donor #9623 had not only been convicted of burglary and served time for it, he had a history of hospitalizations for outbursts and psychotic episodes. He had also been diagnosed with "schizophrenia, narcissistic personality disorder."
In their lawsuit, the Normans said that had they known this they would not have purchased Donor #9623’s sperm from Xytex. At age 9, A.A. was diagnosed with attention deficit hyperactivity disorder. He has also had “suicidal and homicidal ideations” and has been taking anti-depressant and anti-psychotic medications, according to court records.
All but one of the Peachtree City couple’s 13 claims in their 2017 lawsuit against Xytex were dismissed last year by Fulton County Superior Court Chief Judge Robert McBurney. (McBurney allowed the couple’s “specific performance” claim — that Xytex withheld significant information about its sperm donors — to go forward.)
In a June 21 decision, the state Court of Appeals upheld McBurney’s dismissal of the 12 claims.
Judge Clyde Reese, writing for a unanimous three-judge panel, noted that the Normans had alleged a claim of “wrongful birth.” But in a 1990 decision, Reese noted, the state Supreme Court said “wrongful birth” actions are not recognized in Georgia until the General Assembly enacts a clear mandate for them.
All of the Normans’ claims directly relate to the fact that had they known the health, educational and criminal history of Donor #9623, they would not have bought his sperm, Reese said. Then, citing the 1990 Supreme Court decision, he wrote: “we are unwilling to say that life, even life with severe impairments, may ever amount to a legal injury.”
That is a task best addressed by the Legislature, Reese said.
The donor is now the biological father of 36 children in the U.S., Canada and England, legal filings say. The case has prompted calls for more regulation of sperm banks, with background checks for donors.
The Normans’ lawyer, Nancy Hersh of San Francisco, said she has filed lawsuits against Xytex on behalf of other clients and has had some success with cases filed outside of Georgia. She expressed disappointment in the Court of Appeals’ recent decision and said her legal team will ask the Georgia Supreme Court to hear the case.
“We wish we could get some regulation or oversight in Georgia of this system,” Hersh said. “But it’s hard to get it without some positive outcome in the courts. It’s frustrating.”
After she settled some of her cases with Xytex, the company told her it would conduct background checks and verify the education of its donors, Hersh said.
