The Georgia Supreme Court on Monday revived claims in a couple’s lawsuit that alleged a sperm bank failed to divulge that one of its donors was a fraud.
The lawsuit filed by Wendy and Janet Norman is one of several filed against Xytex Corp., which has offices in Atlanta, Athens and Augusta.
The couple’s son, identified in the litigation as A.A., was born in 2002. At the age of nine, A.A. was diagnosed with attention deficit hyperactivity disorder. He also had suicidal and homicidal thoughts, requiring multiple hospitalizations and the need to take anti-depressant and anti-pyschotic medications.
In 2017, the Normans sued Xytex, alleging they had been badly misled about their sperm donor, identified as Donor #9623. Before choosing that donor, the Normans were told Donor #9623 had an IQ of 160, held a master’s degree in artificial intelligence and had a clean mental health history with no criminal background, the suit said.
None of that was true, the suit said. Instead, Donor #9623 had been convicted of burglary and spent time in custody for it. He had been hospitalized with psychotic schizophrenia, narcissistic personality disorder and grandiose delusions. And he had no college degree when Xytex sold his sperm to the Normans.
According to court filings, Donor #9623 is now the biological father of 36 children in the U.S., Canada and England.
In their lawsuit, the Normans said because Xytex misrepresented Donor #9623′s background, the sperm bank should be held liable under Georgia’s Fair Business Practice Act. That law protects the public from unfair or deceptive trade practices that can harm consumers.
In Monday’s decision, Justice Nels Peterson said this claim could go forward and may also entitle the Normans to seek punitive damages against Xytex if they prove one of its employees encouraged or aided Donor #9623 to falsify his background. In June 2019, the state Court of Appeals had dismissed this claim.
The Peachtree City couple also alleged a claim of “wrongful birth," saying if they had known Donor #9623′s true health, educational and criminal history, they would have never bought his sperm.
But Peterson said the state Supreme Court has repeatedly refused to allow civil damage awards in cases that "presume that life itself can ever be an injury.” For this reason, he said, the “wrongful birth” claims cannot go forward, including the Normans' costs of childbirth and what they spent raising their son.
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