Products Liability Law Daily Georgia’s bar against life-as-injury damages may not be so broadly applied in lawsuit against sperm bank
Thursday, October 1, 2020

Georgia’s bar against life-as-injury damages may not be so broadly applied in lawsuit against sperm bank

By Leah S. Poniatowski, J.D.

The Georgia Supreme Court reversed a decision that wholly prohibited damages, noting the possibility of claims based on grounds other than the child’s birth.

The Supreme Court of Georgia reversed in part a ruling by the state appellate court that broadly held that a couple who conceived a child through artificial insemination could not recover damages in their action against the sperm bank that sold the couple donor sperm allegedly resulting in the child’s developing multiple medical conditions because Georgia does not recognize life as an injury. The high court held that while claims "arising from the very existence of the child are barred," claims based on specific impairments caused or aggravated by a defendant’s alleged wrongs may move forward. Thus, the couple may assert claims against the company not premised on the child’s life as a legal injury (Norman v. Xytex Corp., September 28, 2020, Peterson, N.).

In 2001, a couple purchased sperm from Xytex Corporation, a sperm bank, in hopes of having a child. The purchased sperm was from a donor whose profile indicated that he had an IQ of 160, multiple college degrees, a clean mental health history, and no criminal background, all of which turned out to be untrue. In 2002, the couple’s son, who had been conceived with the donor sperm, was born. When the boy was nine years old he was diagnosed with Attention Deficit Hyperactivity Disorder and with Thalassemia Minor, "an inherited blood disorder." As he grew up, the child also exhibited suicidal and homicidal ideations and was prescribed various medications including anti-depressants and anti-psychotics. The couple later discovered that the sperm donor had not obtained a college degree until 2015; had been diagnosed with schizophrenia; had been hospitalized with mental health issues several times; and had spent eight months in jail for residential burglary.

Trial court. The couple filed suit against the sperm bank, asserting claims for fraud, negligent misrepresentation, products liability/strict liability, products liability and/or negligence, breach of express warranty, breach of implied warranty, battery, negligence, unfair business practices, specific performance, false advertising, promissory estoppel, and unjust enrichment, as well as compensatory and punitive damages and attorney fees, arising from the complete fabrication of the donor’s profile. The couple ultimately asserted that had they known the true facts about the donor, they would not have purchased that donor’s sperm. A state trial court dismissed all but the specific performance claim after concluding that the remaining contentions were essentially claims for wrongful birth, which is not a legally recognized claim in Georgia. The couple appealed.

Appellate court. A claim for wrongful birth is generally brought by the parents of an impaired child and alleges that, but for the treatment or advice provided by the defendant, the parents would have aborted the fetus, thereby preventing the birth of the child [see Products Liability Law Daily’s June 24, 2019 analysis]. The Supreme Court of Georgia has held that such an action will not be recognized in Georgia in the absence of a clear mandate by the state legislature. The appellate court had further held that this principle will apply even when a plaintiff attempts to characterize the wrongful birth claim as some other cause of action, as the state trial court determined was the case here.

The parents’ attempt to assert that the sperm bank’s conduct was a breach of a pre-conception duty of care—thus characterizing the suit as a wrongful conception or wrongful pregnancy—was rejected by the trial court, which found that the couple sought and desired the conception that brought them their son. The appellate panel agreed with the lower court, finding no error in the decision granting in part and denying in part the sperm bank’s motion to dismiss. The appeals court further opined that there had been no injury, echoing the sentiments of the Georgia Supreme Court in prior decisions, that no life, even one with severe impairment, will ever amount to a legal injury. The couple appealed to the state high court.

Damages. The high court reaffirmed the rule, holding that "respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization," but agreed with the couple that there may be other damages available. The couple based their appeal on another Georgia decision, which allowed damages for a negligent sterilization procedure. The supreme court explained in that decision, under traditional tort principles, wrongful conception or wrongful pregnancy claims were cognizable because they were malpractice claims. However, damages were limited to the expenses for the unsuccessful medical procedure that led to the pregnancy, pain and suffering, medical complications, costs of delivery, lost wages, and loss of consortium. The mother could not collect damages for the expenses of raising the child because the birth of the child was not an injury. In the present case, the facts did not fit squarely under either ruling, the high court concluded, but those cases established a "key principle that affects the viability" of the couple’s claims—that "life can never amount to a legal injury." Further, the state legislature, the final authority on the issue, had not passed any law to undermine that holding. Thus, the damages that would require recognizing the son’s life as an injury were properly dismissed by the lower court. However, there could be injuries that occur before and after the child is born and that are not based on the child’s life as an injury, according to the state high court.

First, the couple asserted that they would not have purchased the sperm from that donor if the company had shared the facts about the donor. The high court concluded that this was a classic wrongful birth claim and, thus, was barred because it was not recognized under Georgia law. Similarly, the couple could not recover their costs of the pregnancy or of raising their son because they had wanted to conceive a child through artificial insemination. Accordingly, recovery of those costs as damages would transform their son’s birth into a legal injury.

However, if the couple can demonstrate that the company caused injuries other than the life of the child, they may recover damages. The high court provided several examples, positing that the couple could introduce evidence that the company had known that medically significant information had not been communicated to the couple, which may have worsened pain and other symptoms that the child experienced because of the delay in obtaining a diagnosis or treatment earlier in the child’s life. Another possible claim could be for the difference between the cost of the sperm they received and the fair market value of the sperm they believed they were getting. Moreover, the couple raised a consumer claim not barred by the precedent. Specifically, the couple claimed that the company violated the Fair Business Practice Act by misrepresenting the quality of its goods and services. The supreme court concluded that this claim would not require a recognition of life as an injury. Because the appellate court barred almost all of the couple’s claims, its ruling was reversed in part and the matter remanded to determine whether, and to what extent, the couple adequately pleaded claims that did not derive their injury from their son’s life itself.

The case is No. S19G1486.

Attorneys: James Francis McDonough (Heninger Garrison & Davis, LLC) for Janet Norman and Wendy Norman. Thomas Edward Lavender (FisherBroyles LLP) for Xytex Corp.

Companies: Xytex Corp.

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