A Georgia couple can continue its lawsuit against the Atlanta-based sperm bank that helped them conceive a son, the state Supreme Court ruled Monday, allowing them to pursue claims the donor lied about his mental and criminal history.
The high court partially reversed a ruling by a Fulton County Superior Court judge and the Georgia Court of Appeals allowing Wendy and Janet Norman of Peachtree City to seek damages from the sperm bank operated by Xytex Corp. after they discovered the genetic father of their son lied about his health and criminal background.
The decision is a win for prospective parents looking to sperm banks to help them conceive, said Nancy Hersh, one of the attorneys representing the Normans.
“It would require, in my opinion, Xytex to do more than just take whatever these guys say and disseminate it and/or embellish it like they did with (the donor),” she said. “Go online and take a look and see if what these guys are saying is accurate. It took our ladies five minutes to find out that everything he said wasn’t true. Do some background checks, do some due diligence.”
Wendy Norman gave birth to a son in 2002 after the couple bought sperm from Xytex.
According to the court, the sperm the couple purchased came from a donor Xytex promoted as one of its best, with no health or criminal problems, multiple college degrees and an IQ of 160.
But as the Normans’ son grew up, the family discovered he had a rare genetic blood disorder called thalassemia minor, which was determined to have come from the father. The boy was also diagnosed with a number of emotional and mental health disorders, including suicidal and homicidal tendencies that have led to several extended hospital stays. He regularly sees a therapist for his anger and depression, and takes ADHD, anti-depressant and anti-psychotic medications. In 2017, the son did an internet search on his genetic father and found publicly available documents showing the claims Xytex made about him were false.
Though the company marketed him as the picture of health and success, the donor had been diagnosed with psychotic schizophrenia, narcissistic personality disorder and significant grandiose delusions. He had been hospitalized repeatedly for mental health problems, arrested for burglary and other crimes and spent eight months in custody for a residential burglary. He had no college degree at the time Xytex sold his sperm to the Normans.
The Normans say Xytex misrepresented the quality of the donor during their screening process and they selected the sperm based on their assurances. The donor has fathered 36 children over 15 years, according to court documents. Multiple lawsuits have been brought against Xytex since 2014, but all have been dismissed.
The Normans sued Xytex, its Atlanta medical director and another employee in 2017, alleging damages for fraud, negligent misrepresentation, battery, negligence, unfair business practices, false advertising, unjust enrichment and other wrongdoing.
Xytex and an attorney who represented the company did not respond to requests for comment by email or telephone Monday.
The trial court dismissed all but one count, finding the suit alleged claims for “wrongful birth,” an action brought by parents of an impaired child alleging that if not for the treatment or advice provided by the defendant, the parents would have aborted the fetus, preventing the birth of the child.
Wrongful birth is a viable legal argument in some states, but not in Georgia. The state supreme court has repeatedly declined to allow damages in cases that presume that “life itself can ever be an injury.” In other words, a child’s birth in and of itself is not cause for legal action.
That precedent still stands, the court wrote in its 27-page ruling, but some of the Normans’ claims do not rely on their son’s birth being an injury, the court ruled.
“Claims arising from the very existence of the child are barred, but claims arising from specific impairments caused or exacerbated by defendants’ alleged wrongs may proceed, as may other claims that essentially amount to ordinary consumer fraud,” the court wrote.
Some of the Normans’ claims invoke Georgia’s Fair Business Practice Act, which protects the public from unfair or deceptive trade practices.
“They clearly wanted to uphold that portion of Georgia law that says being born is great and life can’t be an injury, but they also really put it to Xytex to tell them why they should be insulated from any accountability at all, which is what existed before this decision,” Hersh said. “So I’m very happy with the decision. I’m happy that Georgia consumers will be protected.”
The Normans are happy too, Hersh said, including the son, who she said feels his concerns have been validated by the court. The family plans on proceeding with their lawsuit.
“There are choices, so we haven’t made our decision yet, but they will be able to litigate, they will be able to take depositions and find out more about the internal workings of Xytex, and it will effectuate changes in the process and Xytex uses,” Hersh said.