October 31, 2020

The Supreme Court of Georgia (“Georgia Supreme Court”), in its decision filed on September 28, 2020, revived some claims against a sperm bank, stating: “Wendy and Janet Norman allege that Xytex Corporation, a sperm bank, sold them human sperm under false pretenses about the characteristics of its donor, and that the child conceived with that sperm now suffers from a variety of impairments inherited from the sperm donor. The Court of Appeals affirmed the dismissal of all but one of the Normans’ claims on the basis of Etkind and Abelson … We granted certiorari and now hold that 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 Underlying Facts

During the time Donor #9623 sold sperm to Xytex, from 2000 to 2016, he was arrested for burglary, trespassing, DUI, and disorderly conduct; he pleaded guilty to burglary in 2005. After a lawsuit was filed against Xytex in 2014 concerning Donor #9623, he provided Xytex with forged graduation diplomas that it accepted without question. Based on the representations that Xytex made regarding its screening procedures and the representations made in Donor #9623’s profile, the plaintiffs purchased Donor #9623’s sperm. The plaintiff wife was inseminated with the sperm, and she gave birth to a son, A.A., in June 2002. Xytex was not involved in the insemination process.

A.A. has been diagnosed with Attention Deficit Hyperactivity Disorder and Thalassemia Minor, an inheritable blood disorder for which Wendy is not a carrier. A.A. regularly has suicidal and homicidal ideations, requiring multiple periods of extended hospitalizations. A.A. regularly sees a therapist for his anger and depression, and he takes ADHD, anti-depressant, and antipsychotic medications.

In March 2017, A.A. conducted an internet search on Donor #9623, and he and the Normans discovered in publically available documents that the representations Xytex made regarding Donor #9623 were false. In reviewing those documents and through interviewing Donor #9623, the Normans learned that, before Donor #9623 began selling his sperm to Xytex in 2000, he had been hospitalized for mental health treatment and diagnosed with psychotic schizophrenia, narcissistic personality disorder, and significant grandiose delusions.

Following their discoveries, the plaintiffs brought suit against Xytex and others, alleging claims for fraud, negligent misrepresentation, products liability and/or strict liability, products liability and/or negligence, breach of express warranty, breach of implied warranty, battery, negligence, unfair business practices, specific performance, false advertising, promissory estoppel, and unjust enrichment. The defendants filed a motion to dismiss the complaint on various grounds, including on the basis that the plaintiffs were asserting “wrongful birth” claims that are not legally recognized in Georgia. The trial court denied the defendants’ motion to dismiss in part and granted it in part concluding that all of the plaintiffs’ claims for relief, with the exception of the specific performance claim, were claims for “wrongful birth camouflaged as some other tort.”

Georgia Supreme Court Decision

Prior Georgia appellate cases have stood for the proposition that “life can never amount to a legal injury … [c]laims seeking damages for the expenses of raising a child cannot be maintained, because such claims are premised on the child’s life as the injury.”

In the present case, the Georgia Supreme Court stated that “some of the damages the [plaintiffs] seek would require recognizing A.A.’s life as an injury, and the trial court was right to dismiss those claims.” Nonetheless, “Although Georgia law does not recognize life as an injury, there can be injuries that predate a child’s birth and are not premised on the child’s life as an injury … in both pre- and post-conception cases, Georgia law has recognized that a cognizable claim may exist for pre-birth injuries to a child without deeming the child’s existence an injury. Any such claims the [plaintiffs] have brought are not wrongful birth claims and should not have been dismissed on that ground.” The Georgia Supreme Court warned in a footnote: “we expressly reserve the question to the extent the [plaintiffs’] claims that they bring on their own behalf concern pre-birth torts by Xytex, as opposed to post-birth torts for failing to disclose information.”

Plaintiffs Are Not Without Remedy

Nonetheless, the Georgia Supreme Court stated: “The [plaintiffs] did not learn about Donor #9623’s medical history until 2017, and we must accept at this procedural stage that there may exist some evidence that the [plaintiffs] relied on Xytex’s representations in failing to obtain a diagnosis or treatment sooner for some of A.A.’s conditions. Such delays may have exacerbated pain and other symptoms suffered by A.A.; these injuries could have been avoided or mitigated had the [plaintiffs] known the truth about Donor #9623’s medical history; and the [plaintiffs] may have incurred additional expenses as a result of not being told the truth sooner … As another example, the [plaintiffs] also may be able to recover damages for the difference in price between the cost of the sperm they received and the fair market value of the sperm that Xytex told them they were getting. Xytex represented that Donor #9623 was one of its “best” donors, but the allegations regarding his background show otherwise … the [plaintiffs] brought a cause of action under the Fair Business Practice Act, OCGA § 10-1-390 et seq. (“FBPA”), claiming that Xytex misrepresented the quality of its goods and services. The FBPA allows for recovery of injuries that do not depend on recognizing life as an injury, and are therefore not barred … the FBPA provides equitable relief to enjoin Xytex from continuing such deceptive practices. And, based on the allegation that one of Xytex’s employee’s encouraged, if not aided, Donor #9623 to falsify his background, the [plaintiffs] may also be entitled to punitive damages. See OCGA § 10-1-399 (a) (“[E]xemplary damages shall be awarded only in cases of intentional violation.”).”

The Georgia Supreme Court held: “To the extent that the [plaintiffs] have pled claims predicated on injuries that are not predicated on life as an injury, these claims are not barred.”

Source Norman v. Xytex Corporation, S19G1486.

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