The Georgia Supreme Court on Thursday took up a question that lower courts have answered uniformly, albeit with no small degree of frustration: Does the state's bar on "wrongful birth" claims leave no recourse for parents who bought sperm from a highly touted donor later revealed to have mental issues and a criminal record.

Lawyers for the parents of a child sired by "Donor 9623" and Georgia-based Xytex Sperm Bank were peppered with questions by the justices, who seemed leery of the plaintiffs' arguments that a 30-year-old decision barring "wrongful birth" lawsuits doesn't apply to the case.

But they were equally exercised by the notion that a sperm bank could advertise a donor as highly educated, healthy and talented, and then sell sperm to unwitting parents from a man who possessed none of those qualities.

The child at issue in this case was subsequently diagnosed with attention deficit hyperactivity disorder, or ADHD, inherited a genetic blood disease determined to have come from his father, and been hospitalized for suicidal tendencies.

Several justices seemed perplexed with arguments by Xytex lawyer Ted Lavender that there is no way for the parents to seek redress under the law, not even for false advertising or products liability.

"I could buy your argument more if there was some scheme where there could be relief for the product being sold," said Chief Justice Harold Melton. "This blanket description of the law is hard to digest."

"Why isn't this a standard consumer fraud case?" asked Justice Nels Peterson. "You advertised a high-value sperm … why aren't they entitled to their money back?"

The plaintiffs aren't just seeking a refund of the $1,600 or so they paid for the sperm, said Lavender.

"They're seeking damages for a lifetime of care" for the child, he said.

The case is one a half-dozen filed in Georgia claiming Xytex falsely advertised the background and attributes of their donors. Most involve No. 9623, but the sperm bank was also sued for misrepresenting another donor.

Donor 9623, whose name is James Aggeles, was claimed to have been a well-educated man with an IQ of 160 working toward a Ph.D., with no history of mental problems or criminal record. He actually had no college degree and had a medical history including a diagnosis of schizophrenia and served time for burglary.

According to court filings, between 2000 and 2016, Aggeles' sperm was used to impregnate at least 36 women.

Well before 2016, mothers impregnated with Aggeles' sperm began raising concerns when online searches revealed details of his criminal and mental health background, and more than a dozen lawsuits against Xytex were filed in the United States and Canada.

Those filed elsewhere have met 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 case, Atlanta Obstetrics & Gynecology Group v. Abelson, bars such action.

That case involved a lawsuit brought by parents who claimed an obstetric practice should have diagnosed their fetal offspring with Downs syndrome so that they could have terminated the pregnancy.

The trial court and Court of Appeals refused to dismiss the case, but the Supreme Court said an action for "wrongful birth" was not grounded in Georgia law.

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

Thursday's arguments involved a lawsuit filed in Fulton County Superior Court by parents Wendy and Janet Norman asserting claims including fraud, negligence, negligent misrepresentation, products liability, breach of warranty, false advertising and specific performance against Xytex and two employees.

In 2018, Judge Robert McBurney—who had already dismissed two prior Xytex suits—did so again, writing that Georgia law and Abelson gave him no other choice.

"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 Court of Appeal followed suit, with Judge Clyde Reese writing that all of 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 the appellees.

"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,'" Reese wrote, quoting Abelson. "This is a task best addressed by the Georgia General Assembly."

During Thursday's arguments, the justices focused on asking the Normans' lawyer, David Newdorf of Oakland, California's Newdorf Law, why he thought Abelson didn't apply.

Unlike Ableson and other cases, he said, this case does not involve a failure to diagnose a preexisting condition, but instead stemmed from Xytex's false representations about and provision of Aggeles' sperm.

"Apart from legal liability, I believe everybody believes a sperm bank should exercise reasonable care in providing services to a client," said Newdorf.

That may be, said Peterson, but how can Xytex be held responsible for causing any injuries the Normans' child may have suffered.

In Abelson, said Newdorf, the doctor had no role in selecting or screening the parents.

"Here, their business as a sperm bank is selling sperm for a live birth," he said. Xytex "caused the selection of a donor they said was suitable who was not suitable."

"Is conception the injury?" Peterson asked. "Because if it is, that starts to look like Abelson."

In that case, said Nahmias, "we said, 'If you wanted a child you cannot complain about the child you get.'"

Lavender also faced some tough grilling, with the justices seemingly more intent on why he felt Abelson provided a complete shield against any liability for the sperm bank.

"Why isn't this a classic battery case?," asked Justice Charles Bethel, hypothesizing a case in which he sought a knee replacement but the surgeon instead put in an artificial knee.

In this case, replied Lavender, the mother asked for sperm and got it.

"They said they were the wrong sperm," said the FisherBroyles partner. "That's a wrongful birth case; they want us to compare their child to a perfect child."

"Your position is that they can completely lie to every customer they have and nobody can do anything about it?" asked Justice Keith Blackwell.

Melton asked whether Lavender's position was that the Normans had not properly couched their complaint.

"It's not my job as the attorney for Xytex to tell them how to plead their case," said Lavender.