Atlanta Judge Tosses Sperm Bank Suit

As reported in the Insurance Journal, a judge in Atlanta has thrown out a lawsuit accusing a sperm bank and sperm donor of misrepresenting the medical and educational history of the donor.

Angela Collins and Margaret Elizabeth Hanson, who live in Canada, filed the lawsuit in March against Xytex Corp., its parent company, sperm bank employees and the donor.

Collins and Hanson alleged that sperm bank employees recommended the donor, saying he was smart, healthy and mature. They later found out the donor is schizophrenic, dropped out of college and had been arrested for burglary.

Fulton County Superior Court Judge Robert McBurney wrote in an order filed Tuesday that while the lawsuit makes allegations including fraud, negligence and product liability, each claim is “rooted in the concept of wrongful birth,” which is not recognized under Georgia law.

The concept of “wrongful birth” arises when parents claim they would not have proceeded with a birth had they been fully informed of a fetus’ condition, McBurney wrote, later adding: “This claim most closely (though by no means perfectly) fits a claim for wrongful birth – and so is not allowed.”

McBurney acknowledged that rapid developments in reproductive medicine have created complicated issues that the law may need to address.

“Science has once again – as it always does – outstripped the law,” he wrote. “Plaintiffs make a compelling argument that there should be a way for parties aggrieved as these Plaintiffs are to pursue negligence claims against a service provider in pre-conception services. After all, the human life that makes the calculus so complicated has not yet begun when would-be parents are working with companies such as Xytex.”

Nancy Hersh, an attorney for Collins and Hanson, said she doesn’t believe the case is a wrongful birth case and that McBurney could have allowed the case to move forward on the negligence claims. She said her clients plan to appeal the judge’s ruling.

“I agree that the law lags behind science,” Hersh said. “I do feel that the decision is wrong because it permits bad behavior by companies such as Xytex who generate millions of dollars in revenues by misrepresenting their product.”

Sperm banks have existed for decades but are loosely regulated. The U.S. Food and Drug Administration requires screening of donors, but that is limited to contagious or infectious diseases. Two professional associations – the American Society for Reproductive Medicine and the American Association of Tissue Banks – provide guidelines that include additional screening, but those are only recommendations.

McBurney’s ruling could set a dangerous precedent given the industry’s loose regulations, Hersh said, because it would “mean that you’re proceeding blindly and that you have no recourse should the same thing happen to you that happened to these people.”

Hanson and Collins used the anonymous donor’s sperm to conceive a child in July 2007. The sperm bank mistakenly sent them several e-mails in June 2014 that revealed the donor’s identity, and they discovered through online searches that he had issues that raised serious concerns and that were not disclosed to them, the lawsuit says.

The child is currently healthy, but the lawsuit says the revelation that their son’s biological father was diagnosed with schizophrenia means they have to pay to have the boy evaluated regularly and, in the event that he is diagnosed with schizophrenia, get him treatment.

The couple wants a medical monitoring fund established for the estimated three dozen children of the donor so they can be tested and treated, if necessary. Collins and Hanson were also seeking punitive damages.