Ted Lavender, FisherBroyles, Atlanta

For the third time, a federal judge in Atlanta has tossed out claims against a Georgia sperm bank involving a donor it touted as a highly educated and multitalented but who was really a convicted felon with a history of mental illness.

The order issued Thursday by Northern District Judge Thomas Thrash Jr. closely mirrors two he issued last year, finding that Xytex Cryo International clients who bore children sired by the donor have no basis under Georgia law to sue for “wrongful birth.”

Judge Thomas Thrash, U.S District Court, Northern District of Georgia.

“This is a wrongful birth case,” Thrash began, which is not recognized as a cause of action under Georgia law. While “wrongful conception” claims, such as those stemming from a failed sterilization or abortion have been allowed to proceed, “wrongful birth claims typically arise when the parents contend they would have aborted the child if they had been fully aware of the child’s condition,” he said.

Xytex’s lead attorney, FisherBroyles partner Ted Lavender, said Thrash’s decision reflects that the plaintiffs’ case largely rested on arguments that were already rejected.

“Really, there was no difference in this suit and two Judge Thrash previously ruled on,” said Lavender, other than some additional claims for false advertising, promissory estoppel and unjust enrichment.  

“We think, once again, the court got this right,” said Lavender.

Thrash is one of three Georgia judges who have nixed lawsuits against Xytex, joining other judges in the United States and Canada who have dismissed similar claims against the sperm bank.

The cases all involve claims that a donor identified as Christopher Aggeles, who was cited in Xytex’s online ads having a Ph.D. in neuroscience with an IQ of 160, was really a college dropout with a felony record and diagnosis of schizophrenia. Multiple mothers of children impregnated with Aggeles’ sperm filed lawsuits after details of his criminal and mental health background were found in online searches.

None of the mothers have claimed their children developed schizophrenia or any other mental disorder thus far, although they fear such disorders might emerge in time, according to court filings.

The just-dismissed complaint was filed in November by Rene and Trayce Zelt who, like the other plaintiffs, argued they never would have allowed Aggeles to father their child, if they had known about his background.

In dismissing the Zelts’ lawsuit, Thrash wrote that the plaintiffs tried to get around Georgia’s bar on wrongful birth claims by arguing the “functional difference” between a wrongful conception and wrongful birth claim are twofold: whether the defendant’s action occurred before or after conception, and whether the defendant’s actions “directly or indirectly caused the injury.”

“The plaintiffs are incorrect,” wrote Thrash. “The reason why Georgia courts have looked on wrongful birth claims with disfavor is not because of the timing of the tort or the causal link between the defendant and the harm.”

The true difference between them is the “measure of damages,” Thrash wrote.

“Wrongful birth claims are disfavored because they require the court to decide between the value of a life with disabilities and the value of no life at all,” Thrash said.

The plaintiffs argued that the “relevant comparison is between the conception of a child with Aggeles as the father and conception of a child from a donor who had been appropriately screened,” Thrash wrote.

“However, this comparison still asks the court to decide between the value of a child’s life with Aggeles as the father (and all of the resulting hereditary problems), and the value of a child’s life with a different donor as the father (without these problems),” Thrash wrote. “And the plaintiffs, through this comparison, admit that they would not have had their children had they known about Aggeles’ history. These are the exact reasons that Georgia does not recognize an action for wrongful birth.”

Thrash’s dismissal leaves alive only one Aggeles-related lawsuit against Xytex at the trial court level. At about the same time the Zelts’ suit was filed, another was filed in Fulton County Superior Court, where a motion to dismiss is under consideration by Chief Judge Robert McBurney—who also dismissed a similar suit against Xytex on the same grounds in 2016.   

Last year, Fulton State Court Judge Wesley Tailor also dismissed a lawsuit against the sperm bank.

Nearly all of the Xytex suits, including the Zelts’, were filed by Nancy Hersh and Brendan Gannon of San Francisco’s Hersh & Hersh, along with local counsel from Heninger Garrison Davis. There was no immediate response to requests for comment.