His profile seemed to make him the ideal donor.
The sperm bank said Donor #9623 had an IQ of 160, could speak four languages, was in good health, held a master’s degree and was working his way toward a Ph.D. in neuroscience engineering, court filings say. So it’s perhaps no surprise that his semen was extremely popular — so much so he’s now the biological father of 36 children in the U.S., Canada and England, filings say.
But lawsuits allege that the profile used by Augusta-based Xytex Corp. to promote Donor #9623 was a complete fraud. The donor was not only a felon, he had a history of hospitalizations for outbursts and psychotic episodes, the suits contend.
“He’s a schizophrenic, and that’s hereditary,” said Nancy Hersh, a San Francisco attorney who has filed two lawsuits against Xytex in U.S. District Court in Atlanta. “This is all so very disturbing.”
Xytex's attorney late Monday noted that a similar lawsuit filed earlier against the company in Atlanta was dismissed, and the dismissal was upheld on appeal.
Hersh said she has been trying to get Xytex to agree to conduct comprehensive background checks of its donors and to establish a medical monitoring fund for the children of Donor #9623. The fund would enable these children to visit medical centers that evaluate and identify the onset of mental illness and that can begin treating it with the appropriate therapies, she said.
“All we’ve asked is that Xytex do the honorable thing — assist these children,” Hersh said.
Two of Hersh’s clients are a same-sex couple from England. One of the women, identified as Jane Doe 1, gave birth to two children using Donor #9623’s semen. The first was born Feb. 28, 2012, and the second on Feb. 22, 2015. The other Atlanta lawsuit was brought by an Ohio woman, who used Donor #9623’s sperm for her son, who is now 9 years old.
Last week, a judicial panel denied Xytex’s attempt to have six cases pending against it nationwide consolidated into a single court in California or Florida. The company has also filed motions to dismiss the two cases here in Atlanta. In October, U.S. District Judge Thomas Thrash temporarily halted the proceedings to give him time to decide those motions.
In his statement Monday, Xytex attorney Ted Lavender said, "In March 2015, a lawsuit was filed in Georgia against Xytex and it was dismissed by the judge in October 2015. The appeal of that case was then dismissed by the Georgia Court of Appeals in March 2016. The trial judge and the Court of Appeals got it right.
"Back in April 2015, there was a lot of media attention surrounding the allegations in that lawsuit when it was filed, but virtually no media attention when the case was dismissed. Xytex is an industry leader and complies with all industry standards in how they safely and carefully help provide the gift of children to families who are otherwise unable have them."
The current lawsuits say that Donor #9623 committed a residential burglary in 2005 and spent eight months in custody for that crime. This occurred before women received the man’s sperm from Xytex, which failed to make an effort to look into the man’s background, the suits say.
In October 2000, when the man applied to become a Xytex donor, he didn’t have a college degree, one lawsuit says. At that time, he’d dropped out of school and “saw it as a fairly easy way to generate income between waiting tables and working as a janitor.”
But he had already been diagnosed at Atlanta Regional Hospital and Northwest Georgia Regional Hospital with schizophrenia, narcissistic personality disorder, a drug-induced psychotic disorder and significant grandiose delusion, court filings say. They add that in 2002 he was placed on Social Security Disability for his mental illnesses.
Xytex promoted Donor #9623 as one of its best donors, saying he was “a man of high integrity, was extremely intelligent and incredibly educated,” filings say. Donor #9623 not only falsified the information that in his profile, but Xytex also assisted him in doing so, the suits allege.
In court filings, the company said the plaintiffs’ main contention is that had they known the alleged “truth” about Donor #9623, “they would have chosen a different donor before the insemination procedure, thereby voiding the birth of these specific children.” But these so-called “wrongful birth” lawsuits are not recognized claims under Georgia law, the motions say.
A few years ago, Xytex inadvertently disclosed the name of Donor #9623 to some of the parents of his children, the lawsuits said. In July 2014, for example, a Canadian woman who’d been inseminated with the man’s sperm contacted the two English women whose suit is now pending in Atlanta. They were told that Donor #9623 was actually a felon with genetic and hereditary mental illness, their lawsuit said.
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