Xytex Corporation sells human sperm for the purpose of aiding those seeking to have children using assisted reproductive technology. The plaintiffs purchased sperm that had been procured from one of three donors –Donor #3116, Donor #5444, and Donor #9623. The plaintiffs alleged that had Xytex conducted a thorough examination, review, and investigation as promised by its website, it would have learned that Donor #3116’s claims about his medical, educational, and family history were false. They further alleged that Donor #3116 had hallmark visual presentations for Charcot-Marie-Tooth disease (“CMT”), a neurological condition characterized by distal muscle weakness and atrophy, sensory loss, and slow nerve conduction velocity, and that his genetic medical condition should have been apparent to Xytex while performing a reasonably careful qualifying procedure, both through the childhood and adult photographs in Xytex’s possession, as well as through the ability to observe him during the application process.
Twenty-one of the named plaintiffs purchased sperm procured from Donor #3116, and his sperm resulted in the conception of ten children and at least two embryos from separate family units. Of those, four of the children have undergone genetic testing, have tested positive for CMT, and will require extensive treatment; three of the children have undergone genetic testing and have inherited the duplicative gene that is associated with CMT; three of the children must undergo additional testing in order to determine whether they have any genetic abnormalities and/or diseases; and the embryos must undergo additional testing in order to determine whether they have inherited any genetic abnormalities and/or diseases.
The plaintiffs further alleged that Donor #5444 has genetic abnormalities and conditions, including symphalangism, a rare congenital difference characterized by stiffness of the digits and lack of motion in the affected finger(s). While symphalangism typically affects the fingers, other joints can also be affected and hearing loss due to fusion of the bones in the middle ear is also possible.
The plaintiffs alleged significant issues regarding the other donor as well.
Collectively, the four complaints, which are nearly identical in substance, asserted claims of fraud, negligent misrepresentation, products liability (strict liability), products liability (negligent liability), breach of express warranty, breach of implied warranty, breach of contract, negligence, violation of the Georgia Fair Business Practices Act, false advertising, promissory estoppel and unjust enrichment; each complaint sought, among other things, monetary damages, specific performance, and injunctive relief. The plaintiffs alleged specifically that they relied to their detriment on Xytex’s representations when choosing to purchase sperm procured from Donors #3116, #5444, and #9623, and that Xytex acted negligently, recklessly, fraudulently, and with callous disregard for the safety of the plaintiffs and their children and embryos conceived as a result of Xytex’s misrepresentations. The plaintiffs further alleged that Xytex failed to timely disclose to them medically significant information about their respective donors once that information was learned, and that Xytex continues to withhold the truth about the hereditary disorders of the donors from other purchasers of their sperm.
Xytex moved to dismiss the complaints and in a single order, the trial court concluded that each of the plaintiffs’ claims, as pled, amounts to an improper claim for “wrongful birth” barred by Georgia law; consequently, the trial court granted Xytex’s motions and dismissed all of the plaintiffs’ claims.
The Court of Appeals of Georgia stated in its February 5, 2026 Opinion: “All parties agree that this case is governed by Norman, 310 Ga. 127. In fact, Norman involved the same attorneys; sperm procured from one of the same donors;
the same general factual allegations; and essentially the same causes of action lodged against Xytex … [in Norma, the Georgia Supreme] Court reiterated that unless and until a legislative change is made by the General Assembly, “wrongful birth” claims seeking damages “that depend on life as an injury” necessarily fail” … the Norman Court held that allegations that the parents “would not have purchased sperm from [the donor] had Xytex revealed the true facts about the donor” was “a classic wrongful birth claim because the necessary and direct result of not buying [the donor’s] sperm is that [the child] would not exist.” Id. at 135(2)(d). Thus, the Court declared that any such claim was barred under Georgia law.”
“Nevertheless, the Norman Court announced that Georgia’s prohibition on wrongful birth claims does not create a blanket immunity for reproductive service providers, and acknowledged that the appellants in that case may have adequately pled claims for relief that did not derive injury from their child’s life.”
The Court of Appeals of Georgia stated: “In contrast to the appellants in Norman, the parties – or more aptly put, the
attorneys – in the instant case had the benefit of the Norman opinion when the underlying complaints were filed. But despite Norman’s clear admonition against allegations that a parent “would not have purchased sperm from [a donor] had Xytex revealed the true facts about the donor” – the prohibited wrongful birth claim – each and every individual cause of action in Appellants’ complaints either includes or incorporates that very allegation. It was for that reason that the trial court concluded that all of Appellants’ claims were barred.”
The Court of Appeals of Georgia stated: “Appellants do not argue, much less demonstrate, which of their 13 causes of action survive or why. Indeed, at no point – neither in the trial court nor in this Court – have Appellants set out the elements of any individual claim that would survive post-Norman, explained the calculation of damages under that claim, or presented meaningful discussion as to how those damages could be recoverable under Norman. These deficiencies have been pointed out by Xytex in both the trial court and this Court, as Xytex has articulated the reasons why it contends that each of Appellants’ claims fail on a claim by claim basis.”
“So yes . . .the Norman Court acknowledged that it is possible to state a claim for recoverable damages under these facts. But it also identified and reiterated the prohibited language of that complaint and directed the parties to apply the legal principles of the opinion to their various causes of action. Appellants’ failure to take heed of the Court’s admonition against using the wrongful birth language in the instant complaints resulted in an adverse ruling from the trial court. And their continued failure to otherwise apply the Norman principles to the individual claims asserted results in our affirmance of the trial court’s order and judgment. Simply put, the burden is on Appellants to demonstrate their allegations of error by the record, and this they have not done.”
Source A.D.A. v. Xytex Corporation, A25A1544.
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