Friday, July 12, 2019
If you wish to sign this amicus brief, please email Tim Lytton at email@example.com.
In the coming days, the attorneys for the plaintiffs in the case of Wendy Norman, et al. v. Xytex Corp., et al. will be filing a petition for writ of certiorari with the Georgia Supreme Court seeking review of the dismissal of their claims against Xytex, a sperm bank headquartered in Atlanta, Georgia. This case is of crucial importance for buyers of reproductive cells in Georgia who, currently, have no recourse against providers/sellers. Liza Vertinsky (Emory), Tim Lytton (Georgia State), and I have co-written an amicus brief in support of the plaintiffs’ petition (attached) and would like to invite others to join. We are also interested in comments on the brief including, in particular, suggestions on how to convince a court—which typically grants only 1-in-10 cert. petitions—to take this sensitive case. Please send comments on or before July 20 and let us know if you are interested in seeing and signing on to the final draft by July 22.
To provide some more background: this is one of numerous cases filed in both state and federal courts in Georgia and elsewhere against Xytex over the last few years by parents of children conceived from sperm purchased from Xytex. The donor in the Norman case, Chris Aggeles, applied to become a donor in 2000 and continued to donate sperm for many years. He claimed he had multiple college degrees and was pursuing a Ph.D. in neuroscience engineering, although in reality he did not have a college degree. At the encouragement of Xytex employees, he falsely claimed he had an IQ of 160. He did not, however, disclose that he had been given diagnoses of and was hospitalized for psychotic schizophrenia, narcissistic personality disorder, and grandiose delusions. In 2002 he qualified for Social Security Disability for his mental illnesses and in 2005 he was convicted of residential burglary and sentenced to 8 months in jail, all the while remaining a donor with Xytex. The Xytex suits came about after the donor’s personal information was accidentally revealed in 2014. Despite representations to the contrary, Xytex did not investigate Aggeles’s background, including his criminal background. The company promoted him as one of their best donors and he ultimately fathered at least 36 children. The child born to the plaintiffs in the Norman case has serious mental health problems and has been hospitalized for psychoses, depression, and suicidal and homicidal ideations.
The Norman case was originally filed at the Georgia Superior Court for Fulton County and included 13 different causes of action, including fraud, negligence, breach of warranty, unfair business practices, product liability, and more. The Superior Court summarily dismissed virtually all of the plaintiffs’ claims under the reasoning that the plaintiffs are asserting what is essentially a wrongful birth claim, which is barred under Georgia Supreme Court case law. On June 21, the Georgia Court of Appeals affirmed the Superior Court’s decision.
Our arguments in this brief, in a nutshell, are as follows:
- The lower courts’ characterization of the plaintiffs’ claims as, essentially, a wrongful birth claim is erroneous because this case does not share essential characteristics of wrongful birth claims (primarily, the claim of loss of opportunity to abort a fetus) and is more akin to a case of wrongful conception and nondisclosure of a medical condition prior to adoption.
- Characterizing the claims brought against the sperm bank as, essentially, a wrongful birth claim leads to an unjust result and ignores the realities of sperm markets.
- The lower courts’ decisions amount to an absolute immunity for sperm banks regardless of the conduct of the bank and its employees, which may have negative public policy and public health ramifications.
- Dismissal of this case is inconsistent with Georgia common law tort principles.
If you have any questions or are interested in reading more about this case and other cases against Xytex, please let me know and I’ll be happy to send you more information (or you can just Google “Xytex” and “Donor 9623”).
Yaniv Heled, J.S.D.
Associate Professor of Law
Co-Director, Center for Intellectual Property
Georgia State University College of Law
P.O. Box 4037, Atlanta, GA 30302-4037
Tel: (404) 413-9092