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By: Shaun Daugherty
It made headlines when several families around the county sued Atlanta based sperm bank Xytec Corp. for claims that they were lied to regarding the specific characteristics of a donor that had been responsible for the birth of 36 children through the bank. The bank had promoted donor 9623 as having a PhD and being physically and mentally healthy. As it turned out, Mr. James Aggeles was a convicted felon who had not finished college and had multiple mental health diagnoses.
At the state court level, a suit filed by Angela Collins and Margarent Hanson, Canadian residents, was dismissed in 2015. The judge ruled that the allegations of fraud, negligence and product liability were essentially claims alleging wrongful birth which is not a recognized cause of action in Georgia. Wrongful birth claims are ones contending that the parents would have not had a child if they have been fully aware of a child’s condition. Typically these claims arise in the scenario of undiagnosed disabilities or conditions materially affecting the fetus and later child development. Plaintiff’s sue for the damages related to the increased cost of raising a disabled child.
In 2016, an Ohio woman, identified as Jane Doe, filed suit against Xytec Corp. in federal court related to her interactions with the company and receipt of donor 9623’s sperm. Eleven different counts were alleged, including fraud, negligence, and breach of warranty. Defendants immediately moved to dismiss the complaint for failure to state a claim as they argued that all of Ms. Doe’s claims were based in a theory of wrongful birth and not actionable in Georgia. Plaintiff argued that it was not a case of wrongful birth, but one of wrongful conception, which is recognized under the law. Wrongful conception claims arise when a sterilization or abortion procedure goes wrong and a live birth results.
On Friday, March 17, 2017, US District Judge Thomas Thrash, Jr. issued his ruling granting the defendants’ motion and dismissed the case. The Judge explained the difference between accepting one theory over the other was a matter of the measure of damages. A successful wrongful conception claim could recover the expenses for an unsuccessful sterilization procedure, pain and suffering, medical complications, cost of delivery, lost wages and loss of consortium. By contrast, “wrongful birth claims are disfavored because they require the court to decide between the value of the life with disabilities and the value of no life at all.” The Judge found that Ms. Doe’s claims were rooted in the theory that she would not have used the sperm from donor 9623 if she had known of his true nature and, therefore, her child would not have been born, i.e. a wrongful birth claim.
As pointed out by the state court judge in Ms. Collins and Ms. Hanson’s case, this appears to be another instance where science has overtaken the law and leaves no remedy to the parents.
For any questions, please contact Shaun Daugherty at [email protected].