Family Law

Georgia Supreme Court Pulls Out From Giving Sperm Banks Blanket Immunity

The opinion is a major move toward accountability for sperm banks in the just about half of states that ban wrongful birth claims.

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There’s major news in the ART world out of Georgia this week. On Monday, September 28, 2020, the Peach State’s Supreme Court released its opinion in Norman v. Xytex. It reverses lower court decisions that had essentially granted blanket immunity to all sperm banks, regardless of any negligence — indeed, even intentional wrongdoing — in failing to screen sperm donors or misrepresenting their personal history. A Georgia trial and appellate court had found that the defendant sperm bank, Xytex, couldn’t be found liable even if it had done all the terrible things the plaintiffs claimed. Wow! Really? Yes. Hence, some pretty incredulous sounding Georgia Supreme Court judges during oral arguments back in May 2020.

The accusations in this case stem from Xytex’s sale of sperm from Donor 9623. Plaintiffs alleged the sperm bank encouraged the donor to lie about his credentials, falsely marketed his sperm as some of the “best,” opted not to confirm the truth of the donor’s social, educational, or medical background; and did not tell the plaintiffs when the bank received concerning medical information about the donor that could have immensely helped in dealing with their donor-conceived child’s mental health issues.

I am sure loyal readers remember this case. Xytex promoted Donor 9623’s sperm (for almost 14 years!) as sourced from a neuroscience Ph.D. student with a 160 IQ, proficient in multiple languages, and with an essentially perfect medical and social background. In reality, Donor 9623 was a felon and college dropout, who suffered from severe mental health issues, causing him to be in and out of institutions. To hear the whole story, and a breakdown of the legal and ethical issues, check out law professor Dov Fox’s Audible series, Donor 9623. Professor Fox even landed an exclusive interview with the donor himself!

This lawsuit was not against the donor. Instead, the case sought damages against the sperm bank related to some of the serious challenges the plaintiffs’ child had faced due to their genetic background. But thanks to prior Georgia precedents — a case called Abelson to be precise — the lower courts dismissed all of plaintiffs’ claims under the heading of “wrongful birth.” Fox told me wrongful birth claims have been thought to violate public policy for sending an intolerable message that: “People of a certain type are too defective to exist.” Or, maybe worse: “I wish my own child hadn’t been born.”

The Ruling — A Victory For Reasonableness In Justice

In yesterday’s opinion, the Georgia Supreme Court started by reaffirming the precedent that bona fide wrongful birth claims are barred under current Georgia law. And that only the legislative branch of government, not the judiciary, can change that. However, the court went on to say the lower courts had erred in determining that all of plaintiffs’ claims were, in fact, wrongful birth claims. While, yes, some of plaintiffs’ damages were prohibited under the category, many of plaintiffs’ claims were not specifically tied to the existence of the child, and should not be dismissed on those grounds.

Multiple Claims Still Standing. The court walked through several claims by the plaintiffs that did not fall under the rubric of a wrongful birth claim. For example, the court pointed out that the plaintiffs’ evidence suggested that Xytex knew of the donor’s serious mental health issues as early as 2014. Plaintiffs did not find out until 2017, despite an alleged promise by the sperm bank to update recipients as to any significant medical developments every six months. Such delays may have exacerbated the pain and suffering, and additional expenses of the plaintiffs and their child. That’s just a straight-up negligence claim.

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Fox said one of most striking conclusions comes at the very end of the 27-page opinion, where the court adds, almost as an afterthought, that misrepresenting donor information can leave companies liable for “deceptive trade practices” that “essentially amount to ordinary consumer fraud.” That may not sound all that surprising, Fox acknowledges. It’s just sperm — advertised like crazy — and sold for a pretty penny. “But,” he told me, “admitting that donor selection is shopping — and treating parents as consumers — gets at one of the biggest controversies in this whole story: What’s okay to want in a child, when you’re in a position to try to choose? Just 10 fingers and toes? Good looks and fancy degrees? What about height or perfect pitch? When does it cross the line from just wanting the best for your future kid, to designing a baby to satisfy your tastes?”

Overall, the opinion is a major move toward accountability for sperm banks in the just about half of states that ban wrongful birth claims. Facilities there would have been able to misrepresent their “products” with impunity. Now, hopeful parents in Georgia at least will have recourse when sperm banks don’t meet their promises. I expect high courts in other states will follow the persuasive opinion on this issue by the Georgia Supreme Court.

As to this particular suit, it’s not over. Now that the plaintiffs have overcome the motion to dismiss, they will have to actually prove the allegations against Xytex — that the sperm bank was not just a victim of a clever and conniving donor. (That’s what Xytex’s CEO at the time told Fox in the Audible Original about the case.) Moreover, as is frequently a challenge in assisted reproductive technology litigation, the plaintiffs will need to prove their exact damages, by calculating the value of intangible factors that are inherently difficult to value. I’m looking forward to seeing how they handle those challenges in the next steps of the litigation.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

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