A landmark case that considers the civil liability of commercial sperm banks for fraud and negligence has reached the Georgia Supreme Court. GSU law professors Yaniv Heled and Timothy Lytton, and Emory Law professor Liza Vertinsky mobilized 38 leading tort law, family law, and health law scholars from around the country to co-sign an amicus brief supporting the plaintiffs’ claims. The case, Norman v. Xytex, concerns whether a commercial sperm bank is subject to any form of liability for marketing and selling sperm with readily knowable undisclosed genetic abnormalities which cause genetic abnormalities in a fetus.
Heled, whose scholarship over the past decade has addressed various aspects of people’s rights in the realm of new genetic technologies, and his research partner, professor Liza Vertinsky, were approached by the plaintiffs’ attorneys in 2018 to help with appeals in the case. Heled recruited his College of Law colleague Timothy Lytton to help draft the brief based on his expertise in tort law.
In the Norman case, the sperm bank, Xytex is accused of misrepresenting the qualities of sperm from a donor whose identity was not disclosed to recipients. Xytex claimed its donor had a clean medical history and multiple academic degrees. Use of the donor’s sperm resulted in 36 live births over a period of 15 years. During this time, Xytex allegedly knew or should have known that the donor did not have an academic degree, had been diagnosed with schizophrenia and narcissistic personality disorder, was hospitalized multiple times for psychotic episodes, and had a felony conviction for burglary.
Although multiple lawsuits have been brought against Xytex, so far, the Georgia courts have dismissed all forms of potential liability, insisting that any claim against a sperm bank for injury to the parents of a child amounts to wrongful birth, a theory of recovery rejected by the Georgia Supreme Court in their 1990 decision in Atlanta Obstetrics & Gynecology Group v. Abelson.
In Abelson, an obstetrician failed to provide a pregnant patient routine prenatal testing for fetal abnormalities. Consequently, the patient gave birth to a child with Down syndrome. The patient and her husband sued for wrongful birth, arguing that, had they known that the baby would be born with Down syndrome, the wife would have aborted the pregnancy.
The Georgia Court rejected this claim on two grounds, explains Lytton. First, the court asserted that, although the doctor was negligent in failing to provide prenatal testing, the alleged harm to the parents of having a disabled child was caused by pre-existing genetic abnormalities, not the doctor’s negligence. Second, the court refused to characterize the birth of any child as a loss. “We are unwilling to say,” explained the court, “that life, even life with severe [impairments], may ever amount to a legal injury.”
In the amicus brief in the Norman case, Heled, Lytton, and Vertinsky argued that Abelson does not apply to the claims against Xytex.
Abelson involved a genetic abnormality inherited from the parents that existed before the physician provided care. By contrast, in Norman, the amicus brief argues it was Xytex’s alleged failure to properly vet the sperm and fraudulent misrepresentations that caused the fertilization of an egg with this genetic abnormality.
Moreover, the parents in Abelson argued they were deprived of a right to abort the pregnancy. Again, by contrast, in their claims against Xytex, the Normans never suggested they did not want their child. They simply argue that their child was born with an abnormality that was caused by the misconduct of the sperm bank, and they want compensation to help them care for a child to whom they are fully committed.
The Georgia Supreme court heard oral arguments in May. Lytton observed that the justices seemed concerned with the sweeping nature of applying Abelson to the 13 different theories of recovery in Norman, including fraud and unfair business practices.
“The court spent a lot of time asking the lawyers for Xytex what the difference is between this case and a case where a dealer fraudulently sells a car with a misleading speedometer reading,” Lytton said. “The court seemed to be asking: Shouldn’t the law in Georgia protect people of consumer fraud when they go to a sperm bank the same way they do when they go to a used car lot?”
The Georgia Supreme Court has not yet released an opinion in the case. Heled argues that, if the allegations against Xytex in this case are true, exposing sperm banks to liability will give them a powerful incentive to vet donors and provide accurate information to clients.
“This case should be sent back down to the trial court for full consideration on the merits,” said Heled, “not dismissed off-hand with a sweeping argument that everything you might ever bring against the sperm bank in a case where a child is born equals wrongful birth and cannot be heard in a court in Georgia.”
Update: In September 2020, The Georgia Supreme Court issued its decision in Norman v. Xytex, reversing the lower courts’ rejection of all of the Normans’ claims and remanding the case for trial on those claims that do not characterize “the child’s existence as an injury.”
According to the Court, “[I]n both pre- and post-conception cases, Georgia law has recognized that a cognizable claim may exist for pre-birth injuries to a child without deeming the child’s existence an injury. Any such claims the Normans have brought are not wrongful birth claims and should not have been dismissed on that ground.”
Written by Mara Thompson