Ontario couple to appeal U.S. judge’s decision to dismiss sperm bank lawsuit

ATLANTA – An Ontario couple is “very disappointed” that an Atlanta judge has dismissed their lawsuit against a sperm bank and sperm donor they allege misrepresented the donor’s medical and social history and will appeal the ruling, their lawyer said Wednesday.

Angela Collins and Margaret Elizabeth Hanson, of Port Hope, Ont., filed the lawsuit in March against Xytex Corp., its parent company, sperm bank employees and the donor.

Collins and Hanson alleged that sperm bank employees talked up the donor, saying he was smart, healthy and mature. They say in the lawsuit they later found out the donor is schizophrenic, dropped out of college and had been arrested for burglary.

Fulton County Superior Court Judge Robert McBurney wrote in an order filed Tuesday that while the lawsuit makes allegations including fraud, negligence and product liability, each claim is “rooted in the concept of wrongful birth,” which isn’t recognized under Georgia law.

The concept of “wrongful birth” arises when parents claim they would not have gone forward with a birth if they had been fully informed of a fetus’s condition, McBurney wrote, later adding: “This claim most closely (though by no means perfectly) fits a claim for wrongful birth — and so is not allowed.”

Nancy Hersh, a lawyer for Collins and Hanson, said her clients are “very, very disappointed” by the decision and have already retained appellate counsel.

A representative for Xytex did not immediately respond to an email seeking comment Wednesday. When the lawsuit was filed earlier this year, the company denied “any assertion that it failed to comply with the highest standards for testing.”

McBurney acknowledged that rapid developments in reproductive science have given rise to complicated issues that may need to be addressed by the law.

“Science has once again — as it always does — outstripped the law,” he wrote. “Plaintiffs make a compelling argument that there should be a way for parties aggrieved as these Plaintiffs are to pursue negligence claims against a service provider in pre-conception services. After all, the human life that makes the calculus so complicated has not yet begun when would-be parents are working with companies such as Xytex.”

But Hersh said she doesn’t believe the case is a wrongful birth case and that McBurney could have allowed the case to move forward on the negligence claims. She said her clients plan to appeal the judge’s ruling.

“I agree that the law lags behind science,” Hersh said. “I do feel that the decision is wrong because it permits bad behaviour by companies such as Xytex who generate millions of dollars in revenues by misrepresenting their product.”

Sperm banks have been around for decades but are loosely regulated. The U.S. Food and Drug Administration requires screening of donors, but that is limited to contagious or infectious diseases. And two professional associations — the American Society for Reproductive Medicine and the American Association of Tissue Banks — provide guidelines that include additional screening, but those are only recommendations.

Collins and Hanson decided to begin a family in 2006 and learned there were three sperm banks approved by Health Canada, the lawsuit said.

After an extensive review of each company, the pair decided on Xytex, then chose their donor after being told, among other details, that he was working on his PhD in Neuroscience Engineering, had a Masters in Artificial Intelligence, was “mature beyond his years,” and was “among their best donors,” the lawsuit said.

Collins then gave birth to the couple’s son in 2007 and was connected with an online group of mothers through Xytex who all had children from the same donor.

The sperm bank mistakenly sent the couple several emails in June 2014 that revealed the donor’s name, and they discovered through online searches that the donor had qualities that raised serious concerns and that weren’t disclosed to them, the lawsuit says.

A lawyer for Collins and Hanson has said their child is healthy, but the lawsuit says the revelation that their son’s biological father was diagnosed with schizophrenia means they have to pay to have the boy evaluated regularly and, in the event that he is diagnosed with schizophrenia, get him treatment.

The couple wants a medical monitoring fund established for the estimated three dozen children of the donor so they can be tested and treated, if necessary. Collins and Hanson were also seeking punitive damages and other compensation.

–With files from The Canadian Press