Judge Shawn LaGrua, Fulton County Superior Court (Photo: John Disney/ ALM)

Yet another Fulton County judge has thrown out a lawsuit filed by parents of children fathered by a highly-touted sperm bank donor who was alleged to have mental and developmental disorders.

Like more than half a dozen similar orders issued by judges in Fulton County and the federal bench in other Xytex cases, the order filed Monday by Superior Court Judge Shawn LaGrua assails the practices of defendants Xytex Corp., but concludes state law makes no provision for claims for “wrongful birth.”

“At the outset, the court is compelled to note that this lawsuit is one of several filed by numerous plaintiffs against these defendants,” LaGrua wrote.

“All of these cases have resulted in a dismissal of the plaintiffs' claims because, despite how the plaintiffs may have characterized the causes of action in their complaints, each claim amounted to a claim for 'wrongful birth,' which is not recognized as a viable cause of action in Georgia,” she said.

More than a dozen suits have been filed in the U.S. and Canada by parents seeking damages involving another Xytex donor who was found to have a criminal record and alleged mental issues after women had been inseminated by him.

Those cases centered on a donor initially known only as Donor 9623, who was later identified as James Aggeles.

According to court filings, Aggeles was described as having an IQ of 160, was working on his PhD, had a “nearly perfect” medical and mental health history and no criminal background.

In fact, Aggeles was then a college dropout with a felony record and a diagnosis of schizophrenia.

There have been settlements of cases in California and Florida, but those filed in Georgia—where Xytex is headquartered—have consistently failed.

Between 2000 and 2016, Aggeles sperm was used to impregnate at least 37 women.

The first wave of lawsuits were filed by parents fearful of what maladies and hereditary conditions their offspring might harbor and the expense of monitoring and caring for them; later ones claimed that some of the children have in fact suffered mental and developmental problems.

The just-dismissed case involves another donor, identified only as No. 4834, whose offspring “have since manifested symptoms and/or received formal diagnoses of various developmental disorders, including autism, sensory processing disorder, developmental delays, and/or speech delays,” LaGrua wrote.

The plaintiffs include Jennifer Cruz, a New York woman who had one child using Aggeles' sperm; a Florida couple and a Florida woman who each have a child by the donor; and a woman in Australia who has three children he sired.

The plaintiffs all claim to have learned in 2016 that their children had similar symptoms and conditions, she said, and that “had they known the true facts” about the donor, they never would have purchased his semen or consented to artificial insemination” with it.

In crafting subsequent complaints since the earlier lawsuits' rejections, plaintiffs suing Xytex have included a range of claims in an effort to seek damages. The instant suit included counts for fraud, negligent misrepresentation, product liability, breaches of express and implied warranty, battery, negligence, specific performance, false advertising, promissory estoppel and unjust enrichment.

But all run afoul of nearly 30 years of precedent based on the Georgia Supreme Court's ruling in 1990's Atlanta Obstetrics & Gynecology Group v. Abelson “that 'wrongful birth' actions shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature,” LaGrua wrote.

“Though this court agrees with other courts in concluding that the alleged conduct of [Xytex] was 'reckless, reprehensible, and repugnant' and 'undoubtedly caused severe emotional harm'” to the plaintiffs, LaGrua wrote, she is bound by the law until the Legislature or appellate courts recognize such claims.

Three similar suits have been tossed by Fulton Superior Court Chief Judge Robert McBurney in recent years, as were three more dismissed by Chief Judge Thomas Thrash Jr. of the U.S. District Court for the Northern District of Georgia.

Fulton State Court Judge Wesley Tailor dismissed nearly all the claims in a 2017 suit, which was ultimately dismissed by the plaintiffs.

In affirming Thrash's dismissal of a 2017 case, the U.S. Court of Appeals for the Eleventh Circuit wrote in February that, while “Georgia state courts or the state's legislature may decide to recognize wrongful birth claims or claims … for the wrongful and fraudulent sale of sperm,” it had no choice but to uphold the trial court.

Like most of the other suits, the lead lawyer in the just-dismissed case is Nancy Hersh of San Francisco's Hersh & Hersh, with local counsel from Heninger Garrison Davis.

In an email, Hersh decried her clients' inability to hold Xytex accountable and said it was ironic that the opinion came out one day before Gov. Brian Kemp signed into law a “fetal heartbeat” bill essentially outlawing abortion in Georgia.

LaGrua “agrees that the conduct is reprehensible, repugnant, etc. but feels her hands are tied,“ Hersh wrote.

“It is amazing that the courts allow repugnant, reprehensible conduct to go unopposed and do not require any accountability in the business of creating life when the Georgia governor just signed the heartbeat law intended to honor and preserve life,” she wrote.

Xytex is represented by Ted Lavender and Andrew King of FisherBroyles.

Lavender said Xytex was pleased with the ruling and noted that it continues to defeat the claims but lamented the critical commentary accompanying some of the dismissals.

“It is unfortunate certain judges have commented negatively on Xytex' business model in the orders dismissing the cases” Lavender said.

“They have not had the benefit of Xytex's actual business model, but only the allegations made by various plaintiffs in their complaints,” he said.

In prior comments to the Daily Report, Lavender has said he is confident that—should any of the cases ever make it to trial—his client would win on the merits.

Correction: This story has been updated to note that the most recent lawsuit involves another donor.