NORMAN et al. v. XYTEX CORPORATION et al.
A19A0445
In the Court of Appeals of Georgia
June 21, 2019
REESE, Judge.
SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 21, 2019
In the Court of Appeals of Georgia
A19A0445. NORMAN et al. v. XYTEX CORPORATION et al.
Wendy and Janet Norman (collectively, “the Appellants”) appeal from the trial
court’s order granting in part and denying in part the motion to dismiss filed by Xytex
Corporation, J. Todd Spradlin, M. D., and Mary Hartley (“the Appellees”) for
damages premised on a transaction with a sperm bank, which resulted in the birth of
the Appellants’ child. For the reasons set forth infra, we affirm.
Viewed in favor of the Appellants,1 the complaint alleged that the Appellants
purchased from Xytex Corporation (“Xytex”) sperm that Xytex had procured from
Notes
trial court’s ruling on a motion to dismiss for failure to state a claim for which relief may
be granted is reviewed de novo and the pleading being challenged, i.e., the [complaint], is
construed in favor of the party who filed it.”).
a man identified as “Donor #9623.” According to the complaint, Donor #9623 applied
to become a sperm donor with Xytex and began regularly selling his sperm to Xytex
in October 2000. The Appellants purchased, through the Appellees, sperm from
Donor #9623, and Wendy Norman gave birth to a son, A. A., in June 2002. The
complaint alleged that A. A. was diagnosed with Attention Deficit Hyperactivity
Disorder at age nine, and with Thalassemia Minor, “an inherited blood disorder[.]”
Further, A. A. had “suicidal and homicidal ideations[,]” and had been prescribed
various medications including anti-depressants and an anti-psychotic.
The Appellants alleged that Donor #9623 had “completely fabricated” his
Xytex sperm donor application. They alleged, for example, that “the profile for
[Donor #9623] represented as fact that [he] had an IQ of 160, multiple college
degrees, a clean mental health history, and no criminal background.” According to the
Appellants, however, Donor #9623 did not obtain a college degree until 2015; had
been diagnosed with “Schizophrenia, Narcissistic Personality Disorder, a drug
induced psychotic disorder, and significant grandiose delusions”; had been repeatedly
hospitalized for mental health reasons, and had “committed a residential burglary in
2005[,]” a crime for which he spent eight months in custody; and had been arrested
for other crimes.
The Appellants brought suit against the Appellees for fraud, negligent
misrepresentation, products liability and/or strict liability, products liability and/or
negligence, breach of express warranty, breach of implied warranty, battery,
negligence, , unfair business practices, specific performance,2 false advertising,
promissory estoppel, and unjust enrichment, seeking various damages, including
punitive damages, and attorney fees. The Appellees filed a motion to dismiss arguing,
inter alia, that the complaint alleged claims for “wrongful birth,” which is not a
legally recognized claim in Georgia.
The trial court granted in part and denied in part the Appellees’ motion,
dismissing all the claims with the exception of the claim for specific performance.
The trial court certified its order for immediate review, and this Court granted the
Appellants’ application for interlocutory review. This appeal followed.
We review the grant of any motion to dismiss de novo, and a
motion to dismiss should not be granted unless the allegations of the
complaint disclose with certainty that the claimant[s] would not be
entitled to relief under any state of provable facts asserted in support
had withheld “significant information” about the Appellees’ sperm donors, and sought to
have that information released to “sperm purchasers[.]”
thereof. We construe the pleadings in the light most favorable to the
plaintiff[s] with any doubts resolved in the plaintiff[s’] favor.3
With these guiding principles in mind, we turn now to the Appellants’ specific claims
of error.
The Appellants argue that the trial court erred in construing their claims, other
than that for specific performance, as claims for wrongful birth.
“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[s], the parents would have aborted the fetus, thereby preventing the birth
of the child.”4 The Supreme Court of Georgia has held that “‘wrongful birth’ actions
shall not be recognized in Georgia absent a clear mandate for such recognition by the
and punctuation omitted).
behalf of an impaired child and alleges basically that, but for the treatment or advice
provided by the defendant[s] to [the child’s] parents, the child would never have been
born.”). Id.
legislature.”5 This principle applies even when plaintiffs attempt to characterize what
is, fundamentally, a wrongful birth claim as some other cause of action.6
The trial court, in its order dismissing the complaint in part, found that the
Appellants “sought and desired the conception that brought them A. A.”; therefore,
the complaint did not allege a wrongful pregnancy, but rather a wrongful birth. In a
footnote, the trial court noted that “Georgia law recognizes only those claims in
which the alleged negligence resulted in undesired conception.”7 The Supreme Court
of Georgia has defined “wrongful pregnancy” or “wrongful conception” actions “as
those brought by the parents of a child whose conception or birth was due to the
negligence of a physician in performing a sterilization or abortion.”8 The Court held
(1994) (“Though couched in terms of breach of contract, breach of confidential
relationship, and negligence, the cause of action set forth in [the plaintiffs’] complaint is,
in reality, one for wrongful birth.”).
(recognizing a wrongful pregnancy or wrongful conception claim against a hospital whose
staff physician had negligently performed a sterilization procedure).
that both wrongful pregnancy and wrongful conception actions are recognized in
Georgia.9
Damages for wrongful conception “include expenses for the unsuccessful
medical procedure which led to the pregnancy, pain and suffering, medical
complications, costs of delivery, lost wages, and loss of consortium,” but do not
include the costs of raising the child, because “a parent cannot be said to have
suffered an injury in the birth of a child.”10
In their complaint, the Appellants specifically contended that “[h]ad Plaintiffs
known the true facts, Plaintiffs would not have purchased the sperm of Donor #9623
from Defendants[.]” Citing to various cases, including those asserting public policy
claims, the Appellants alleged that Xytex had a “preconception duty of care” to
prospective parents and their unborn progeny. None of those cases are applicable
here. In those cases, the Georgia courts permitted recovery from negligent
sterilization procedures or for damages resulting from exposure to chemicals or
a plaintiff to recover damages for intentional or negligent conduct).
(rejecting a claim for the mental distress of raising a child conceived after a negligent
sterilization).
infectious diseases.11 All of the Appellants 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.”12 This is a task best addressed by the Georgia General
Assembly.13
“recognize[d] that he could be held liable in tort for negligently or deliberately infecting
[his wife] with herpes, a sexually transmitted disease[ ]”); Graves, 252 Ga. at 442 (1);
Hitachi Chem. Electro-Products v. Gurley, 219 Ga. App. 675, 676-677 (1) (466 SE2d 867)
(1995) (physical precedent only) (Affirmed the trial court’s denial of defendant chemical
company’s motion to dismiss where plaintiffs alleged that their children’s prenatal and/or
postnatal injuries were caused by exposure to defendant’s dangerous chemicals prior to the
births of the children.); cf Abelson, 260 Ga. at 715 (The Court held that there was no
wrongful birth cause of action in a suit brought by the parents of a girl born with Down
syndrome against the obstetrician who allegedly failed to advise the mother of a
preconception diagnostic test. The Court was unwilling to recognize that a child could be
considered an “injury.”).
policy considerations involved in recognition of ‘wrongful birth’ actions as well as a
prospective establishment of the contours of the action, if it is to be recognized in this
state. Such a task is best suited to the legislature.”).
Based on the foregoing, the trial court did not err in granting in part and
denying in part the Appellees’ motion to dismiss.
Judgment affirmed. Miller, P. J., and Rickman, J., concur.