Zelt et al v. Xytex Corporation et al

Filing 17

ORDER GRANTING 2 Motion to Dismiss. Signed by Judge Thomas W. Thrash, Jr on 2/22/2018. (jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RENE ZELT, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:17-CV-4851-TWT

XYTEX CORPORATION
a Georgia Corporation, et al.,
Defendants.
ORDER
This is a wrongful birth case. It is before the Court on the Defendants
Xytex Corporation, Xytex Cryo International LTD, J. Todd Spradlin, and Mary
Hartley’s Motion to Dismiss [Doc. 2]. For the reasons set forth below, the
Defendants’ Motion to Dismiss is GRANTED.
I. Background
The Plaintiffs Rene Zelt and Trayce Zelt reside in Texas and have two
children, A.Z. and B.Z., who were both conceived by means of artificial
insemination with semen purchased from the Defendant Xytex Corporation.1
The Defendant Xytex Corporation is a for-profit sperm bank with its principal
place of business in Georgia.2 It is a subsidiary of the Defendant Xytex Cryo

1

Compl. ¶ 1.

2

Id. ¶ 2.

T:\ORDERS\17\Zelt\mtdtwt.wpd

International LTD.3 The individual Defendants were associated with the Atlanta
office of Xytex in various ways.4
On October 18, 2000, James Aggeles applied to be a sperm donor with
Xytex.5 On his application, Aggeles claimed that he had a Bachelor’s Degree, a
Master’s Degree, and that he was working toward his Ph.D. in artificial
intelligence.6 None of this was true, however, as Aggeles had actually dropped
out of school at that time.7 Prior to applying to be a sperm donor, Aggeles had
also been hospitalized and diagnosed with psychotic schizophrenia, narcissistic
personality disorder, and significant grandiose delusions.8 But during Aggeles’s
first visit to Xytex, the Defendant Hartley suggested to him that more educated
donors did better selling their sperm.9 As a result, Aggeles filled out his
application falsely by inflating his educational background and lying about his
mental health history.10
Despite Xytex’s claim that all applicants went through a rigorous

3

Id. ¶ 3.

4

Id. ¶¶ 4-8.

5

Id. ¶ 12.

6

Id. ¶ 13.

7

Id. ¶ 21.

8

Id. ¶¶ 20-21.

9

Id. ¶ 21.

10

Id.

T:\ORDERS\17\Zelt\mtdtwt.wpd

-2-

qualification procedure that takes months to complete, including a medical
review and regular updates to their medical and criminal histories, Aggeles was
approved as a donor within two weeks.11 Xytex presented this false information
to its customers through Aggeles’s public profile.12 The Complaint alleges that
Aggeles was only given a ten minute physical examination, during which no
physical or mental health history was discussed.13 After Aggeles was approved
as a sperm donor, he was hospitalized numerous times for mental health
reasons, and was arrested on numerous occasions.14 Between 2000 and 2016,
Aggeles became one of Xytex’s most popular donors.15 Families often desired the
sperm of highly educated and accomplished people, and Xytex promoted Aggeles
as such a donor based upon the information in his application. During those
years, Aggeles became the biological father of at least thirty-six children
through Xytex’s sale of his sperm, including the Plaintiffs’ two children.16
The Plaintiffs, a same-sex couple, decided in early 2006 to conceive
children through artificial insemination.17 They discovered Xytex’s website after

11

Id. ¶¶ 18, 22.

12

Id. ¶ 13.

13

Id. ¶ 22.

14

Id. ¶ 23.

15

Id. ¶ 24.

16

Id.

17

Id. ¶ 29.

T:\ORDERS\17\Zelt\mtdtwt.wpd

-3-

researching online.18 The Plaintiffs sought to find a sperm donor with verified
medical, physical, and personality attributes that complemented their own
attributes.19 While conducting research, the Plaintiffs were impressed by Xytex’s
sperm donor qualification procedures.20 When the Plaintiffs reached out to Xytex
by phone, Xytex’s representatives told them that Aggeles was a very popular
donor, and that his sperm was rarely available.21 As a result of Xytex’s
representations, the Plaintiffs purchased Aggeles’s sperm.22 Using Aggeles’s
sperm, the Plaintiff Rene Zelt gave birth to A.Z. on March 17, 2007, and then
gave birth to B.Z. on December 11, 2009.23
In December 2015, the Plaintiffs conducted an internet search of their
donor, and discovered, through publicly-accessible documents, that most of
Xytex’s representations concerning Aggeles were not true.24 The Plaintiffs
learned that Aggeles had been diagnosed with schizophrenia, that he had
dropped out of college, and that he had pleaded guilty to residential burglary.25

18

Id. ¶ 29.

19

Id.

20

Id.

21

Id.

22

Id.

23

Id. ¶ 31.

24

Id. ¶ 32.

25

Id. ¶ 33.

T:\ORDERS\17\Zelt\mtdtwt.wpd

-4-

They also learned that the photographs on his public profile had been altered to
remove a large facial mole.26 All of the information about Aggeles’s educational
and criminal history was easily accessible through a simple internet search.27
As a result, the Plaintiffs filed their Complaint on November 30, 2017, alleging
thirteen different causes of action against the Defendants, including fraud,
negligence, and breach of warranty.28 The Defendants now move to dismiss the
Complaint for failure to state a claim.
II. Legal Standard
A complaint should be dismissed under Rule 12(b)(6) only where it
appears that the facts alleged fail to state a “plausible” claim for relief.29 A
complaint may survive a motion to dismiss for failure to state a claim, however,
even if it is “improbable” that a plaintiff would be able to prove those facts; even
if the possibility of recovery is extremely “remote and unlikely.”30 In ruling on
a motion to dismiss, the court must accept the facts pleaded in the complaint as

26

Id.

27

Id.

28

This action is one of numerous cases arising out of Xytex’s sale of
Aggeles’s semen. This Court has previously presided over, and dismissed, two
similar cases against these Defendants. See Doe 1 v. Xytex Corp., 1:16-CV-1453TWT; Doe v. Xytex Corp., 1:16-CV-1729-TWT.
29

12(b)(6).
30

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); FED. R. CIV. P.
Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).

T:\ORDERS\17\Zelt\mtdtwt.wpd

-5-

true and construe them in the light most favorable to the plaintiff.31 Generally,
notice pleading is all that is required for a valid complaint.32 Under notice
pleading, the plaintiff need only give the defendant fair notice of the plaintiff’s
claim and the grounds upon which it rests.
III. Discussion
The Defendants’ primary argument is that all of the Plaintiffs’ claims are
derivative of a wrongful birth action, and because wrongful birth claims are not
recognized in Georgia, the Plaintiffs’ claims must be dismissed.33 In other words,
the Defendants argue that all of the Plaintiffs’ claims fundamentally stand on
the assertion that if the Plaintiffs had known the truth about Aggeles, the
Plaintiffs’ two children would not have been born. The Plaintiffs, for their part,
argue that this case is not one for wrongful birth, but rather for wrongful

conception.34
In Georgia, wrongful conception claims generally arise when a steriliza-

See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251
31

(7th Cir. 1994) (noting that at the pleading stage, the plaintiff “receives the
benefit of imagination”).

See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th
Cir. 1985), cert. denied, 474 U.S. 1082 (1986).
32

33

Defs.’ Mot. to Dismiss, at 5-8.

34

Pls.’ Br. in Opp’n to Defs.’ Mot. to Dismiss, at 5.

T:\ORDERS\17\Zelt\mtdtwt.wpd

-6-

tion or abortion procedure goes wrong and a live birth unintentionally results.35
In such a case, the measure of damages allows “recovery of expenses for the
unsuccessful medical procedure which led to conception or pregnancy, for pain
and suffering, medical complications, costs of delivery, lost wages, and loss of
consortium.”36 By contrast, wrongful birth claims normally arise when the
parents contend they would have aborted the child if they had been fully aware
of the child’s condition.37 While wrongful conception claims have been allowed
in Georgia, wrongful birth claims have not.38 The Plaintiffs argue that the
functional differences between these two torts are (1) the timing of the tort (i.e.,
pre- or post-conception), and (2) whether a defendant’s actions directly or
indirectly caused the injury. According to the Plaintiffs, when the wrong occurs
before conception and directly causes the harm, as in failed sterilization cases,
the tort is allowed.39 And when the wrong occurs after conception and indirectly
causes the harm, as in failure-to-diagnose cases, the tort is disallowed.

35

Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 442 (1984).

36

Id. at 443.

37

Atlanta Obstetrics & Gynecology Grp. v. Abelson, 260 Ga. 711, 713

(1990).
38

Id. at 714; Campbell v. United States, 962 F. 2d 1579, 1583 (11th

Cir. 1992) (“In the instant case, while Georgia has a statute which permits
injured parties to recover for medical malpractice committed by private parties,
this statute does not permit recovery for the tort called wrongful birth.”).
39

While the Court does not need to address them here, there are also
numerous causation problems with the Plaintiffs’ argument.
T:\ORDERS\17\Zelt\mtdtwt.wpd

-7-

The Plaintiffs are incorrect. The reason why Georgia courts have looked
on wrongful birth claims with disfavor is not because of the timing of the tort or
the causal link between the defendant and the harm. The true difference
between the two torts is the measure of damages. Wrongful birth claims are
disfavored because they require the court to decide between the value of a life
with disabilities and the value of no life at all. The Georgia courts are “unwilling
to say that life, even life with severe impairments, may ever amount to a legal
injury.”40 In this case, the Plaintiffs essentially claim that had the Defendants
been truthful with them about Aggeles’s history, they would not have used his
sperm and their children would not have been born.
The Plaintiffs also contend that this action is not one for wrongful birth
because the relevant comparison for damages in this case is not between a child
being born with a hereditary predisposition for mental illness, and nonexistence
of the child.41 The Plaintiffs argue that, instead, the relevant comparison is
between the conception of a child with Aggeles as the father, and conception of
a child from a donor who had been appropriately screened.42 However, this
comparison still asks the Court to decide between the value of a child’s life with
Aggeles as the father (and all of the resulting hereditary problems), and the

40

Abelson, 260 Ga. at 715.

41

Pls.’ Br. in Opp’n to Defs.’ Mot. to Dismiss, at 12.

42

Id.

T:\ORDERS\17\Zelt\mtdtwt.wpd

-8-

value of a child’s life with a different donor as the father (without these
problems). And, the Plaintiffs, through this comparison, admit that they would
not have had their children had they known about Aggeles’s history. These are
the exact reasons that Georgia does not recognize an action for wrongful birth.
Finally, the Plaintiffs argue that the Defendants ask this Court to create
a broad, new “immunity” from liability for negligent and reckless sperm banks,
and that “[j]udicial creation of such immunity would usurp legislative power.”43
However, exactly the opposite is true. The Plaintiffs ask this Court to allow a
cause of action that the legislature has never recognized, and which the Georgia
Supreme Court has explicitly rejected. This Court would “usurp legislative
power” by doing so. The legislature, and not this Court, is the proper forum for
addressing the allegedly negligent or reckless failure of sperm banks to screen
sperm donors.44
IV. Conclusion
For the reasons stated above, the Defendants’ Motion to Dismiss [Doc. 2]
is GRANTED.

43

Id. at 12.

See Abelson, 260 Ga. at 714 n.5 (noting that “there needs to be a
thorough assessment of all of the public 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” and concluding
that “[s]uch a task is best suited to the legislature”).
44

T:\ORDERS\17\Zelt\mtdtwt.wpd

-9-

SO ORDERED, this 22 day of February, 2018.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

T:\ORDERS\17\Zelt\mtdtwt.wpd

-10-