The Georgia Supreme Court Holds that Damages May be Sought in Cases Arising Out of the Birth of a Child with Genetic Defects.

The Georgia Supreme Court has reaffirmed the long standing rule that being born does not amount to a legal injury but that other damages may be sought in cases arising out of the birth of a child with genetic defects. In Norman v. Xytex Corp., the plaintiffs purchased the sperm of Donor  #9623 from Xytex, a sperm bank. Xytex promoted Donor #9623 as one of its best donors on account of him being a Ph.D candidate with an IQ of 160 and having no history of mental health issues or criminal activity. Wendy Norman gave birth to a son, A.A., who was diagnosed with ADHD and Thalassemia Minor, an inheritable blood disorder of which Wendy Norman was not carrier. As he grew older, A.A. regularly had suicidal and homicidal thoughts, requiring him to be hospitalized for extended periods of time and take a host of medications. Through internet research, plaintiffs discovered that Donor #9623 falsely reported his education status, mental history, and criminal history to Xytex. It was also discovered that Xytex had not asked Donor #9623 for any verification, and a Xytex employee encouraged him to exaggerate his IQ and education.

Plaintiffs sued Xytex Corp 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, false advertising, promissory estoppel, and unjust enrichment. The defendants moved to dismiss on the grounds that the claims ultimately amounted to “wrongful birth,” which is not a legally recognized cause of action under Georgia law. The trial court granted the motion to dismiss all counts except for the plaintiffs’ specific performance claim, ruling that they were all claims for “wrongful birth camouflaged as some other tort.” The Court of Appeals affirmed.

The Georgia Supreme Court affirmed in part and reversed in part. The Court held that Georgia law does not recognize a claim for wrongful birth, which is a claim in which the parents claim they would have aborted a child had they been fully aware of the child’s condition. The Court further held that Georgia law does not recognize claims for damages that depend on life as the injury. In reversing, however, the Court held that not all of Plaintiffs’ claims depended on A.A. being born alive as the injury upon which the damages are based. The Court held that plaintiffs could recover damages based on additional expenses incurred as a result of not being told the truth about Donor 9623 sooner, as well as damages under the Fair Business Practices Act for the difference in price between the cost of the sperm they received and the fair market value of the sperm that Xytex told them they were getting. Further, they may be entitled to punitive damages because one of Xytex’s employees encouraged Donor #9623 to falsify his history.

The important takeaway here is that a claim arising out of the conception or birth of a child may survive if the damages sought are not solely based on the child being born alive.

The case is Norman v. Xytex, ___ S.E.2d ___, 2020 WL 5752325 (Ga. Ct. App. September 28, 2020).