(Photo: Jason Doiy/ALM)

Following the dismissal of more than a half-dozen lawsuits in Georgia accusing a sperm bank of peddling semen from a donor with mental health disorders and other issues in recent years, the Georgia Supreme Court will decide whether the state's long-standing prohibition on claims for "wrongful birth" forestalls such actions. 

On Monday, the court agreed to hear an appeal in one of several cases filed by the clients of Georgia-based Xytex Sperm Bank over claims that "Donor 9623," who was touted as a well-educated man with an IQ of 160, actually had a medical history including a diagnosis of schizophrenia and had served time for burglary. 

Sperm from the donor, identified in court filings as James Aggeles, was used to impregnate at least 37 women between 2000 and 2016.

Years before 2016, mothers impregnated with Aggeles' sperm began raising concerns after online searches revealed details of his criminal and mental health background were found in online searches.

More than a dozen lawsuits targeting Xytex were filed in the United States and Canada. The earliest ones were brought by parents fearful of what maladies and hereditary conditions their offspring might harbor, while the later actions claimed that some of the children have in fact suffered mental and developmental problems. 

Those filed elsewhere have met with mixed results, with settlements reported in Florida and Canada.

But in Georgia's state and federal courts, judges—often expressing sympathy for the parents and children—have consistently ruled that a 1990 decision, Atlanta Obstetrics & Gynecology Group v. Abelson (398 S.E.2d 557), bars such action. 

Writing for the majority, Justice Norman Fletcher wrote that an "action for 'wrongful birth' is brought by the parents of an impaired child and alleges basically 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."

While other courts have recognized wrongful birth as a cause of action, Fletcher wrote, "we hold that 'wrongful birth' actions shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature."

There was a single dissent: Justice Robert Benham wrote that he would have allowed the suit to proceed.

"Unlike the majority, who answers this question in the negative by holding that this state will not recognize a cause of action for wrongful birth, I would answer in the affirmative and hold that such a cause of action exists within the framework of our traditional law of torts," wrote Benham 30 years ago. 

"The judiciary has historically performed a meaningful role in addressing citizen complaints in a timely and adequate fashion," wrote Benham. "We must remain willing to answer the age-old questions: If not us, then who; if not now, then when; if not here, then where? With regard to this case, I believe the answer is that the crucial issues should be decided by this court, here and now."

The case the high court agreed to hear involves claims filed in Fulton County Superior Court by Wendy and Janet Norman, whose son was born in 2002 and later diagnosed with attention deficit hyperactivity disorder and a genetic blood disorder, required antidepressant and antipsychotic medications and suffered from "suicidal and homicidal ideations."

In 2018, Fulton County Superior Court Chief Judge Robert McBurney—echoing the language in two prior rulings in similar suits—wrote that he had no choice but to dismiss the Norman case. 

"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," McBurney wrote. 

The Georgia Court of Appeals agreed, with Judge Clyde Reese writing last June that the Normans' claims "directly relate to the fact that, had they known the health, educational and criminal history of Donor 9623, they would not have purchased his sperm from [Xytex]."

"As the Supreme Court of Georgia stated, 'we are unwilling to say that life, even life with severe impairments, may ever amount to a legal injury.' This is a task best addressed by the Georgia General Assembly," Reese wrote. 

In its decision granting cert, the Supreme Court said it was "particularly concerned" with whether the Court of Appeals correctly applied Atlanta Obstetrics & Gynecology Group to its opinion in the Norman case. 

Benham, the sole dissent in that case, will not be among those considering the issue: He is retiring March 1.

The team of plaintiffs lawyers in all the litigation targeting Xytex is led by Nancy Hersh of San Francisco's Hersh & Hersh; she did not immediately reply to a request for comment.

Xytex is represented by Ted Lavender and Andrew King of FisherBroyles in Atlanta; Lavender had no comment on the case. 

Correction: An earlier version of this story misstated the number of women impregnated by Donor 9623; the correct number is 37.