Grab some popcorn, pull up a chair, and watch the Georgia Supreme Court hold oral arguments by videoconference! The case? What happens when a sperm bank sells bad sperm? In this case, the sperm bank is alleged to have sold sperm provided by a donor who lied about his IQ, professional background, and criminal history. Even more, a child who was conceived with his donated sperm has genetic conditions allegedly passed down by the sperm donor.
While the justices asked the hard questions of the attorney for the parent plaintiffs, the justices really went for the jugular with the sperm bank’s attorney.
The case is styled Norman v. Xytex, and oral argument took place on May 21, 2020. Readers may recall this case, where hopeful parents chose sperm from Xytex Donor 9623, thanks to Xytex’s profile of a donor with stellar credentials: a clean health record, 160 IQ, PhD student, and proficiency in four languages. Impressive!
Too bad none of those were true. Instead, when 9623’s identity was accidentally revealed by the sperm bank, some quick research found him to actually be a felon and college drop-out suffering from bipolar disorder as well as schizophrenia. In fact, while 9623 checked “no” on Xytex’s questionnaire as to whether he had any history of mental health issues, he had been hospitalized multiple times for mental illness prior to first donating with Xytex. If the donor had been truthful, or if any of this information was known to potential recipients — as the justices point out — donor 9623 would not have been anyone’s choice source for donor sperm.
Not knowing any of this, the plaintiffs chose Donor 9623’s sperm, and conceived a son from his sperm. Their son has suffered severe mental health issues, and the plaintiffs are asking for the sperm bank to pay the costs related to their son’s mental health treatment.
Since bringing suit against Xytex, the plaintiffs have had a rough road. The trial court and the Georgia Court of Appeals both dismissed the plaintiffs’ claims, finding that they amounted to “wrongful birth” claims, which are barred in the state under an old Georgia Supreme Court case called Abelson. In Abelson, a doctor negligently failed to diagnosis the in utero condition of a fetus. When the parents brought suit, the court found it against public policy to award damages based on the missed opportunity to abort a human life. In Abelson, the parents conceded that the doctor’s failure didn’t affect the health of the child; the only difference was that if the doctor had not been negligent, the parents would have had the option to terminate the pregnancy.
Law Professors Weigh In.
An amicus brief was submitted on behalf of 38 law professors in support of the plaintiffs. In the brief, the professors argue that it would be mistake for the Georgia Supreme Court to apply Abelson in a case like this.
First, they point out that in Abelson, unlike here, the conception and the condition of the fetus existed prior to and regardless of the doctor’s negligence. And in Abelson, the plaintiffs argued they would have terminated the pregnancy if they had been given an accurate diagnosis. Here, if the plaintiffs had full information as to the donor, they would not have terminated an existing pregnancy, but instead would have simply chosen a different donor.
Second, unlike in Abelson, the plaintiffs are not claiming that their injury is predicated on the birth or life of their child. The plaintiffs do not ask for the ordinary costs of raising a child, but for the extraordinary costs (mental health treatment for their son) relating to the defendants’ alleged wrongdoings. The law professors point out that Georgia courts routinely award compensation to parents for costs related to a child harmed by a defendant.
Plaintiffs Can At Least Recover The Cost Of The Sperm, Right?
The plaintiffs paid approximately $1,600 to Xytex for Donor 9623’s sperm. Forget the extraordinary costs issue for a second; at oral argument, the Georgia Supreme Court justices really wanted to understand why, if the plaintiffs indeed could prove wrongdoing by the defendants, Xytex wouldn’t at least be responsible for paying the $1,600 in fees back.
The sperm bank’s attorney, to the justices’ frustration, was not about to concede that a sperm bank would ever owe fees back — regardless of the various proposed alternative fact scenarios proposed by the justices. And while never wanting to concede, even on a minimal amount, is perhaps instinctual for an attorney; here, the failure to adequately respond to this point might have undermined the credibility of the defendant’s counsel.
As argued on the amicus brief, pure civil immunity in this context would be a strange result. It might also entail negative consequences for both public health and child welfare, if sperm banks could make knowingly false representations about the sperm they sell. One Supreme Court justice went so far as to tip his hand, by saying “that can’t be right” during the oral argument.
Professor Jody Madeira, one of the amici, was optimistic that we’ll see the Georgia Supreme Court reverse the lower courts’ opinions here. “Watching these oral arguments made me hopeful that, at last, it might be possible to hold gamete banks liable for the type of negligent behavior that in any other context would be slam-dunks for the plaintiffs.” After all, sperm banks are in a unique position in this context. Their negligence can have long-lasting consequences for both the children conceived with the sperm and their families. And sperm banks hold the power in any transaction. That’s partly because sperm is still frequently sold as anonymous, and clients are completely reliant on the sperm bank’s vetting of the donor. That’s why, like most other people or businesses, sperm banks, too, should be subject to appropriate liability when negligence — or worse — can be established.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.