For the third time, Fulton County Superior Court Chief Judge Robert McBurney has thrown out essentially all the claims in a lawsuit seeking to hold an Atlanta sperm bank accountable for providing semen from a donor it falsely touted as a highly intellectual scholar. In dismissing the claims against the Xytex Sperm Bank, McBurney once again expressed sympathy for the plaintiffs and decried the fact that “public policy issues raised by this litigation” have “outstripped advances in law and policy.” “Plaintiffs insist their suit is not for wrongful birth but rather … for fraud, products liability, misrepresentation, negligence, breach of warranty, etc.,” McBurney wrote. “Superficially, plaintiffs are correct, but simply calling one tort by another name does not transform that tort into the other.” McBurney noted the claims may be revived on appeal and he wrote alternative rulings on several counts denying defense motions to dismiss should the case come back before him. An earlier case he dismissed on identical grounds was accepted by the Georgia Court of Appeals. Similar claims in federal court—also dismissed on wrongful birth grounds—are before the U.S. Court of Appeals for the Eleventh Circuit. McBurney wrote the most recent case is different from the others because the plaintiffs' 16-year-old child, identified as “A.A,” was diagnosed with a genetic blood disease and attention deficit hyperactivity disorder, and is taking anti-psychotic medications. “[I]n this case, unlike previous Xytex litigation this court has heard, plaintiffs can point to actual, present struggles they and A.A. are enduring rather than the fear of potential future physical and/or psychiatric issues.” McBurney noted that he has no authority to overrule t he Supreme Court of Georgia, which disallowed wrongful birth claims in 1990's Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711. “The direction from the higher courts and Legislature is clear—perhaps a step behind today's science but clear—and until that law is changed, it dictates the outcome of this case,” he wrote. The lawsuits, which are among at least a dozen filed against Xytex in the United States and Canada, all stem from sperm donated over a period of years by Chris Aggeles. He was advertised as having a Ph.D. in neuroscience and 160 IQ when he was, in fact, a college dropout with a felony record and schizophrenia. According to the complaints, Aggeles sired at least 36 children. It was only in 2014 that he was identified and parents began coming forward, concerned their children might suffer the same hereditary afflictions as Aggeles. Several of the cases have settled confidentially, including two in federal court in California and Florida. In the U.S. District Court for the Northern District of Georgia, Judge Thomas Thrash has dismissed three Xytex suits, one of which is on appeal. Xytex lawyer Ted Lavender of FisherBroyles said the case before the Eleventh Circuit is the only active case. A team of lawyers led by Nancy Hersh of San Francisco's Hersh & Hersh is spearheading the array of litigation. She did not immediately reply to a request for comment.