Ted Lavender of FisherBroyles in Atlanta.
Ted Lavender of FisherBroyles in Atlanta. (Courtesy photo)

A federal judge has thrown out two cases against a Georgia sperm bank over claims that it misled clients about the psychiatric, educational and criminal background of a sperm donor.

In two near-identical orders issued March 17, Northern District Judge Thomas Thrash ruled that the suits against Xytex Corp. were essentially claims for “wrongful birth,” which is not recognized under Georgia law.

Thrash is the third Georgia jurist to find that the basis for an assortment of “Jane Doe” suits against Xytex are barred by long-standing Georgia case law holding that wrongful birth is not a justiciable claim. Three other suits in Fulton County Superior and State Court have also been largely gutted by judges there, although some ancillary claims have been allowed to remain in those cases.

The suits are among at least 13 that were filed in the U.S. and Canada over claims that a donor touted as a Ph.D. in neuroscience with an IQ of 160 was, in fact, a college dropout with a felony record and diagnosis of schizophrenia. Multiple mothers of children sired by a donor identified as Chris Aggeles filed suit after details of his criminal and mental health background were found in online searches.

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

The mothers in the federal suits had attempted to overcome earlier rulings regarding the wrongful birth issue by arguing that their suits were actually for “wrongful conception,” which are allowed in Georgia. But, Thrash wrote, wrongful conception claims “generally arise when a sterilization or abortion procedure goes wrong and a live birth unintentionally results,” allowing a plaintiff to recover for medical expenses, pain and suffering and other claims.

“By contrast, wrongful birth claims normally arise when the parents contend they would have aborted the child if they had been fully aware of the child’s condition,” Thrash wrote.

The Xytex plaintiffs attempted to link their claims to the timing of the alleged tort, “i.e., pre- or post-conception,” wrote Thrash, and to whether the defendants’ actions directly caused the injury.

“According to the plaintiffs, when the wrong occurs before conception and directly causes the harm, as in failed sterilization cases, the tort is allowed,” Thrash wrote. “And when the wrong occurs after conception and indirectly causes the harm, as in failure-to-diagnose cases, the tort is disallowed.”

That argument is incorrect, the judge said.

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

The Jane Doe plaintiffs, he said, essentially argued that, had Xytex told them about Aggeles’ history, “they would not have used his sperm and their children would not have been born.”

“The plaintiffs attempt to mask this truth by describing the defendants as having ‘exposed plaintiffs and their child to [Aggeles'] traits through their misrepresentations.’ But a genetic disease is not the same as a virus or a bacteria,” Thrash wrote.

“Avoiding ‘exposure’ to Aggeles’ various mental health problems” would not mean the children would be healthier, wrote Thrash; “it would mean they would not exist.”

FisherBroyles partner Ted Lavender, who is leading Xytex’s defense in the Georgia cases, said the company “is pleased with this ruling, and that this is now the third Georgia judge who has dismissed these claims finding, rightly in our view, that they are impermissible wrongful birth claims.”

Those suits, and most of the other Xytex suits elsewhere, are being led by Nancy Hersh, Kathleen Hersh-Boyle and Brendan Gannon, all of San Francisco’s Hersh & Hersh. They did not immediately reply to requests for comment.

Last year, Fulton County Superior Court Judge Robert McBurney dismissed nearly all the claims of two Xytex suits, and in February, State Court Judge Wesley Tailor also dismissed the bulk of a Xytex suit, although he left open the possibility that the plaintiff could sue to recover for the fees she paid the sperm bank.

McBurney’s orders are pending before the Georgia Court of Appeals.

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