By Jackie Salo
A Georgia couple is suing a sperm bank after they discovered their donor, who was advertised as a Ph.D. candidate, has a criminal record and a history of mental illness, according to a lawsuit.
Wendy and Janet Norman are allowed to proceed with their lawsuit against the sperm bank, Xytex Corporation, after the state Supreme Court ruled Monday the case could be fought in trial court.
The couple welcomed a son in 2002 after sperm from Donor #9623, who was advertised as a Ph.D. candidate with an IQ of 160, a clean mental health history and no criminal record, the suit says.
But as their son got older, they discovered he had serious medical and mental health problems, some of which required hospitalizations.
The Normans claim they then learned that the sperm donor had lied and had actually been hospitalized repeatedly for diagnosed mental health problems, including psychotic schizophrenia.
The donor also had no college degree at the time that the couple bought his sperm and had been arrested for burglary and other crimes, the suit states.
In 2017, the Normans took legal action against Xytex, alleging negligent misrepresentation, battery, false advertising and other wrongdoing.
But Xytex argued that the lawsuit brought claims for “wrongful birth,” which is barred under a 1990 state Supreme Court ruling that determined “life, even life with severe impairments, may [never] amount to a legal injury.”
A Fulton County judge subsequently dismissed all but one of the claims and the state court of appeals upheld that ruling.
However, the state Supreme Court partially reversed that ruling Monday — sending the case back to the trial court.
In a unanimous opinion, Justice Nels Peterson said the stance remains unchanged on whether legal action can be taken in cases “that necessarily presume that life itself can ever be an injury” — but the court also argued that there were other potential damages the couple can seek that “do not necessarily state their child’s birth as an injury.”
For example, the suit invoked Georgia’s Fair Business Practice Act, claiming Xytex misrepresented the quality of its goods and services, Peterson said.
Peterson said the next step would be for the couple to determine which claims for damages fit under the high court’s rulings so they can go back to the trial court to pursue them.
“If this case does move forward, Xytex is confident in the actual evidence that exists to refute the allegations,” Ted Lavender, an attorney for Xytex, said in an email to the Associated Press.
Nancy Hersh, who is representing the Normans, celebrated the ruling from the state’s high court.
“It feels great and it’s justice,” Hersh said.