On October 2, the Georgia Supreme Court revived a lawsuit alleging that a sperm bank misrepresented its screening process for donors which lead to a couple purchasing the sperm from a donor who had unreported mental illness and a burglary conviction. Monday, the state supreme court ruled Wendy and Janet Norman could NOT sue for wrongful birth, but instead had a case based on the alleged wrongdoing by the sperm bank, Xytex Corp.

 

According to the Normans’ suit, the donor had lied about his mental health and criminal history. Xytex never asked him to verify his answers, supply his medical records or even asked him to provide identification. He also wrongly claimed to have an IQ of 160 and to be actively pursuing a PhD.

 

However, the donor actually pleaded guilty to burglary in 2005 and had arrests for trespassing, driving under the influence and disorderly conduct. He had been hospitalized for mental health treatment and had been diagnosed with psychotic schizophrenia, narcissistic personality disorder and significant grandiose delusions. He also had no college degree when he completed his sperm donor questionnaire, and even later provided the sperm bank with forged diplomas, claimed the Normans.

 

Xytex stated that it carefully screened donors for health issues, criminal history and family history, according to the lawsuit and maintained that its screening process was so exacting that fewer than 5% of candidates became donors.

 

When the Normans had a son conceived with the donor’s sperm, the child was born with a blood disorder inherited from the father. And now that he is older, he has suicidal and homicidal ideations and takes plenty anti-psychotic medications. The Normans sued grounds of fraud, negligent misrepresentation, negligence, breach of warranty, unfair business practices, false advertising and unjust enrichment.

 

An appeals court had barred the couple’s claims under a Georgia Supreme Court decision, Atlanta Obstetrics & Gynecology Group v. Abelson. The plaintiff in that case had alleged her doctor failed to inform her about a test during pregnancy that could have detected a chromos related disorder in her fetus. In the Abelson case, the court barred medical malpractice suit, saying that “life, even life with severe impairments, may (not) ever amount to a legal injury.”

 

The Georgia Supreme Court said Abelson does not preclude all of the Normans’ claims.

The Normans can NOT sue based on the theory that they wouldn’t have ever even purchased the donor’s sperm if Xytex had revealed his true background, the Georgia Supreme Court said.

But they could sue based on allegations that their reliance on Xytex’s representations led them to delay diagnosis or treatment for their son’s conditions, the state supreme court said. If one of Xytex’s employees encouraged the donor to falsify his background, the Normans may also be entitled to punitive damages, according to the opinion. They may also be able to recover the difference in price between the fair market value of the sperm they received and the sperm they were promised, and they may be entitled to an injunction preventing Xytex from continuing alleged deceptive practices.

 

 

The supreme court remanded for lower courts to determine which claims survive under its opinion. The Atlanta Journal-Constitution, the Associated Press and the Georgia Recorder covered the decision. Ted Lavender, a lawyer for Xytex, commented in an email to the Associated Press. “If this case does move forward, Xytex is confident in the actual evidence that exists to refute the allegations,” he said.

 

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