Whose Sperm Is it Anyways in the Wild, Wild West of the Fertility Industry?

• Citation: Vol. 34 No. 3
• Publication year: 2018

Whose Sperm Is It Anyways In The Wild, Wild West Of The Fertility Industry?

Tatiana E. Posada
Georgia State University College of Law, tposada1@student.gsu.edu

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WHOSE SPERM IS IT ANYWAYS IN THE WILD, WILD WEST OF THE FERTILITY INDUSTRY?

Tatiana Elizabeth Posada^*

Introduction

Imagine a couple that is unable to conceive a child naturally. Luckily, they had the money and resources available to them to conceive a child through assisted reproductive technology (ART),¹ so they decided to start their family through the use of intrauterine insemination.² They selected a sperm bank³ and began the arduous process of selecting a sperm donor who fit the desired traits and characteristics for their child.⁴ The sperm bank matched them with an anonymous donor, Donor 9623, and assured the couple that the donor was "a healthy male with an IQ of 160, a bachelor's of science in

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neuroscience, a master's degree in artificial intelligence, a Ph.D. in neuroscience engineering on the way, and no criminal history."⁵ Given this representation of Donor 9623 as the ideal candidate, the couple moved forward with the intrauterine insemination procedure and successfully conceived a child.⁶ After starting their new family, the couple accidentally found out the identity of Donor 9623, James Aggeles,⁷ and from a simple Internet search, they uncovered the shocking truth.⁸ Instead of their ideal neuroscientist donor, the father of their child was "a college dropout with a felony conviction and diagnosed schizophrenia."⁹

This is Angela Collins and Margaret Hanson's story.¹⁰ This is Jane Doe 1 and Jane Doe 2's story.¹¹ This is more than fifteen American, Canadian, and British families' stories.¹² Angela Collins and Margaret Hanson believed they had control over the process to start their family and the ability to select the man that would provide half of their child's genetics.¹³ The sperm bank, Xytex Corporation (Xytex), also reassured them that this was the case,¹⁴ but in June 2014, Angela and Margaret received the rude awakening that this was indeed not the truth.¹⁵ After finding out the true identity of their sperm donor, the women began notifying other families who also

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used the same anonymous sperm donor to conceive their children.¹⁶ Donor 9623 has allegedly fathered at least thirty-six children under his false identity through the purchase, promotion, and sale of his sperm by Xytex.¹⁷

Not only were Angela and Margaret shocked to realize the true identity of their sperm donor, but on October 20, 2015, they also found out they would not be able to hold Xytex accountable for its actions when a Georgia court dismissed their claims in Collins v. Xytex Corporation.¹⁸ Angela and Margaret brought ten different claims against Xytex: fraud, negligent misrepresentation, strict liability in products liability, negligence in products liability, breach of express warranty, breach of an implied warranty, battery, negligence, unfair business practices, and third party fraud.¹⁹ None of these claims were prenatal tort claims,²⁰ but a Fulton County Superior Court judge dismissed almost every claim, indicating each claim was a derivative of the prenatal tort of wrongful birth.²¹ According to the court's reasoning, Georgia does not recognize a prenatal tort for wrongful birth; therefore, any claims that are derivatives of wrongful birth are also not recognized.²² Similarly,

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Fulton County State Court also dismissed the majority of a separate lawsuit against Xytex.²³

Alas, not only have state courts arrived at this analysis and conclusion, a federal court in Georgia has also dismissed all claims in two separate cases against Xytex for the same reasons.²⁴ In Doe 1 v. Xytex Corporation, the United States District Court for the Northern District of Georgia determined the lawsuit against Xytex was a wrongful birth case even though the plaintiffs brought eleven causes of action, none of which were prenatal tort claims.²⁵ In addition to the two lawsuits filed in Georgia state courts, on December 7, 2016, there were a total of six federal lawsuits regarding Donor 9623 pending against Xytex, and these suits were filed across the nation in California, Florida, Georgia, and Ohio.²⁶ These cases will collectively be referred to as "the Xytex cases" throughout this Note. In Georgia, these cases have left families without any ability to hold Xytex accountable for its actions and have allowed Xytex to continue to operate in the reproductive health care realm however it chooses.

The purpose of this Note is to assess the need for Georgia to reevaluate prenatal torts due to advances in ART procedures, the increase in use of this technology,²⁷ and the lack of sperm bank regulations, which have now resulted in the problem evidenced by the Xytex cases. Part I examines the history behind the creation of the three main prenatal torts: wrongful birth, wrongful life, and

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wrongful conception, followed by an examination of the current sperm bank regulations. Part II analyzes Georgia's evaluation of prenatal torts, Georgia's policy considerations when evaluating prenatal torts, Georgia's interpretation of claims against sperm banks, and Georgia's limited sperm bank regulations. Part III examines several proposals to remedy this issue, while accounting for Georgia's policy concerns, to ensure the state is protecting its citizens' rights and deterring sperm banks from engaging in fraudulent business practices.

I. Background

As evidenced by the Xytex cases, the advancement of ART and the lack of sperm bank regulations have resulted in a need to reexamine Georgia's approach to prenatal tort claims and sperm banks. As technology advances, it is important for states to adapt to these changes to continue protecting fundamental rights surrounding decisions to have a child. This section provides a brief introduction to prenatal torts generally, an explanation of prenatal torts in Georgia, a brief introduction to current sperm bank regulations, and an explanation of the convergence of prenatal torts and sperm bank regulations.

A. Prenatal Torts

In the 1973 case Roe v. Wade,²⁸ the Supreme Court of the United States determined a woman possesses a constitutional right to "make an informed decision regarding the procreative options available to her."²⁹ After the Supreme Court held that a woman has a right to terminate her pregnancy given temporal limitations,³⁰ the nation

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began to see the development of prenatal torts, to which states have responded differently.³¹

In general, a tort is "a civil wrong, other than [a] breach of contract, for which a remedy may be obtained."³² There are many different types of torts including, but not limited to, intentional torts and negligent torts, which include claims like medical malpractice.³³ A prenatal tort is simply a type of tort relating to reproduction³⁴ that is usually characterized as a negligence claim or, more specifically, a medical malpractice claim.³⁵ The primary prenatal torts include wrongful birth actions, wrongful life actions, and wrongful conception or wrongful pregnancy actions.³⁶

1. Wrongful Birth and Wrongful Life

Generally, wrongful birth is "[a] lawsuit brought by parents against a doctor for failing to advise them prospectively about the risks of their having a child with birth defects."³⁷ A wrongful birth claim is based on the argument that had the doctor properly advised the parents of the child's risk for birth defects, the parents would have opted to not conceive or have an abortion, rather than proceed with the pregnancy.³⁸ Wrongful birth generally involves a planned

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pregnancy resulting in a child born with a genetic deformity or disability.³⁹ Some states recognize wrongful birth actions,⁴⁰ while other states have expressly prohibited the cause of action.⁴¹ Where wrongful birth is recognized, damages usually include "the extraordinary costs associated with raising an unhealthy child until the child attains the age of majority, these same costs beyond the age of the child's majority, damages for parental emotional harm, and compensation for comprehensive child rearing costs."⁴²

A wrongful life claim is essentially the same as a wrongful birth claim; however, in a wrongful life claim it is the child or someone on behalf of the child, rather than the parent, who is alleging pain and suffering.⁴³ Consider the following hypothetical: Dr. A fails to prospectively warn patient B about the risk of her having a child born with birth defects, so B conceives child C and proceeds with the pregnancy. C is then born with birth defects. B (the mother) would

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bring a wrongful birth claim against Dr. A, while C (the child) would bring a wrongful life claim against Dr. A. Both A and C would be arguing that, but for Dr. A's negligent advice, B either would not have conceived or would have aborted C, avoiding the pain and suffering resulting from the birth defect. While a variety of states recognize wrongful birth, only four states recognize wrongful life as a valid claim.⁴⁴ Where wrongful life is recognized, damages usually include special damages for costs to the child for the extraordinary expenses necessary to treat the birth defect.⁴⁵ A detailed discussion of wrongful life is beyond the scope of this Note because the Xytex cases specifically focus on the distinction between wrongful birth and wrongful conception.

2. Wrongful Conception

The third and most widely-accepted prenatal tort is wrongful conception.⁴⁶ Generally, a wrongful conception or wrongful pregnancy action is "[a] lawsuit brought by a parent for damages resulting from a pregnancy following a failed sterilization [procedure]."⁴⁷ Where wrongful conception is recognized, damages usually include the mother's medical expenses and "emotional distress damages associated with pregnancy and childbirth," but most courts have declined to expand "such damages to the costs of raising the unexpected child to...