(Photo: Jason Doiy/ALM)

Although harshly critical of the business practices of a Georgia sperm bank that sold semen of a man with a history of mental illness and a criminal record, the U.S. Court of Appeals for the Eleventh Circuit joined a list of lower and state court judges who have declared that Georgia law provides no remedy for aggrieved parents.

“Reckless, reprehensible, and repugnant, Xytex and its employees’ alleged conduct undoubtedly caused severe emotional harm” to the parents of a child sired by the donor, the appellate opinion said. Nonetheless, the judges said, Georgia law provides no remedy for “wrongful birth,” and the trial court was correct to dismiss the case.

The per curiam opinion issued Monday by Judges Gerald Tjoflat, Jill Pryor and Kevin Newsom follows a familiar path for suits against Xytex in Georgia courts, where they have been uniformly rejected by judges who say there is no cause of action under Georgia law.

More than a dozen suits have targeted Xytex in Georgia and elsewhere, with varying degrees of success. The company has settled claims in Florida and California, but a Canadian suit was dismissed.

All the suits spring from Xytex’s use of sperm donated by a man the parents initially knew only as Donor 9623 but who was later identified as James Aggeles.

As detailed in the opinion, Xytex marketed Donor 9623 as a having an IQ of 160 and working on his PhD. He “had a ‘nearly perfect’ medical and mental health history, had no criminal background, and was one of Xytex’s most sought-after donors.”

In fact, Aggeles was a college dropout with a felony record and diagnosed with schizophrenia.

Aggeles’ sperm was used to impregnate at least 367 women between 2000 and 2016. 

Multiple mothers of children impregnated with Aggeles’ sperm filed suit after details of his criminal and mental health background were found in online searches.

The suit at issue in the appellate opinion was filed by a lesbian couple, Rene and Trayce Zelt who, like the other plaintiffs, argued they never would have allowed Aggeles to father their two children if they had they known of his history and background.

As he has twice before in Xytex suits, Chief Judge Thomas Thrash of the U.S. District Court for the Northern District of Georgia granted the company’s motion to dismiss.

“This is a wrongful birth case,” wrote Thrash, and as such is impermissible under Georgia law.  “[W]rongful 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.”

Such 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,” wrote Thrash in dismissing the case in February 2018.

The appellate opinion agreed.

“The Zelts’ case rises and falls on whether their claims are actually for wrongful conception (which Georgia law recognizes) or wrongful birth (which Georgia law does not recognize),” it said.

“A claim for wrongful conception, also known as wrongful pregnancy, alleges that, had the medical provider properly performed a sterilization or abortion procedure, the plaintiff would not have become pregnant,” it said.

“In contrast, a claim for wrongful birth alleges that a medical provider failed to provide advice, information, or treatment that, had it been provided, would have led the parents to terminate the pregnancy. … The Georgia Supreme Court has held that wrongful birth claims are not actionable under Georgia law,” the opinion said.

Like other decisions scrapping Xytex suits, the opinion seemed to urge lawmakers to step in.

“The Georgia state courts or the state’s legislature may decide to recognize wrongful birth claims or claims like the Zelts’ claims for the wrongful and fraudulent sale of sperm,” it said.

“Although we are deeply troubled by the defendants’ alleged conduct in this case, our careful review of the Zelts’ claims leads us to conclude that we must affirm the district court’s grant of the motion to dismiss,” it said.

Like most of the Xytex suits, the Zelts’ litigation was filed by Nancy Hersh and Brendan Gannon of San Francisco’s Hersh & Hersh, along with local counsel from Heninger Garrison Davis. Their appeal team included San Francisco litigator David Newdorf.

Hersh said the appellate court took too narrow a view of the claims against Xytex.   

“It is unfortunate that the court expressly described the conduct of Xytex and its employees as reprehensible, repugnant and reckless, then based on its interpretation and application of Georgia law, allowed the case to be dismissed,” Hersh said via email. “I believe the case could have proceeded under other theories which the court found were ‘well pleaded,’ not just wrongful birth, but the science has outpaced the law in Georgia and the Eleventh Circuit.”

She said an appeal of the federal suit was unlikely, “although we have another case pending in the [Georgia Court of Appeals], so that court is in a position to change Georgia law.”

Newdorf said the case was difficult, “because there is no appellate court decision in Georgia state courts addressing negligent screening of a sperm donor. This case involves the application of last-century tort law to the emerging field of assisted reproductive technology.

“I am confident that the courts will catch up with the new reality and hold sperm banks accountable for egregious misconduct,” he said.

Ted Lavender, FisherBroyles, Atlanta (Courtesy photo)

Xytex is represented by Ted Lavender and Andrew King of FisherBroyles.

Lavender said the opinion basically restated what the earlier dismissals had said, but said the criticisms of his client were unwarranted.

“Because this case was dismissed at the motion-to-dismiss stage, there was no discovery so—as the trial court did—they assume the facts as alleged,” he said.

“Had there been discovery, we would have been able to disprove a lot of the bad stuff that’s in there, and address those allegations head-on,” he said.

If the case had not been dismissed, he said, “I feel confident we would have ended up winning on the facts.”