PEACHTREE CITY, Ga. - The rage started early: Collapsing on the floor in kindergarten. Not responding to anyone. Screaming in the first grade.
There were signs of bipolar disorder.
Then he disappeared in the third grade.
As he grew into his teenage years, Wendy Norman’s son took a deeper dive into troubling behavior.
"Then we found on his phone that he was searching ‘How to kill myself’ and ‘How to kill my perfect step brother,’” the Peachtree City mother said.
Norman, whose son is now 15, is one of several of mothers across the United States, Canada and U.K. who have filed claims against Atlanta-based sperm bank, Xytex, amid the accidental discovery that their sperm donor’s profile was a lie.
Instead of being a tall, athletic genius with an IQ of 160 and a PhD, Donor #9623 was an unemployed, convicted felon, who fathered about 40 children through the sperm bank.
The plaintiffs’ attorneys say the information was accidentally e-mailed to the donor and a parent, who went on to search the donor’s name online.
Additionally, arrest records and the donor’s online profiles have pointed towards disabling schizophrenia. Now children, including Norman’s son, are showing symptoms of mental illness.
Norman’s son did a Google search last March for the donor ID number.
“He comes in as he's getting ready for bed and says, ‘Can you come see this?’ Which I have no idea what he's talking about at this point, and I go in and he just turns the computer to me,” Norman said. “He had searched the donor number, which I would have never done, because why would it be out there?”
It resulted in 2016 stories about the donor, who was identified in lawsuits.
“You're not supposed to know that. And when he searched the donor number, articles about the donor and the schizophrenia and the mental health and the being arrested and all of that came up. For me, I'm scared. How do I help my son?” Norman said. “He's beyond scared.”
A San Francisco-based legal team successfully settled several of the cases, but they’re now challenging Georgia courts, as the state does not recognize wrongful birth claims.
"Originally, Georgia dismissed the Georgia cases,” said Nancy Hersh, the lead attorney who specializes in fertility cases. “We have cases everywhere, and they weren't dismissed. Only the Georgia cases were dismissed.”
Appealing Georgia Courts
Newly filed suits like Norman’s add a new chapter to the legal fight in 2018.
“These people called me after the other litigation had resolved and it's become even worse,” Hersh said. “The children are growing up and they are beginning to manifest signs and symptoms of mental illness. These two families in this present litigation have children who are troubled.”
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“These are the first cases that have an opportunity to make precedent that can protect families and keep the sperm banks honest,” said appellate attorney David Newdorf, who works alongside Hersh.
In previous litigation, Georgia courts have made it clear that the state does not recognize what’s considered “wrongful birth” claims. It’s a legal standard that dates back to 1990.
“So given that we don't have any precedents to rely on for many courts, the trial courts relied on
Georgia law that came up from cases with really different facts that are not all like our case,” Newdorf said. ”Those are called the wrongful birth cases, which is a claim almost always involving the negligent failure to diagnose a hereditary disease during pregnancy. So when the patient comes to their doctor for prenatal care -- at that point the fetus already has a genetic condition that was not caused by the doctor's care. And those cases involve around what kind of damages or claims that a mother and parents can bring for the negligent failure to diagnose that was pre-existing. It's a very different set of facts.”
Attorneys for Xytex and the donor believe the courts have repeatedly tossed the lawsuits out for good reason.
"When you have a wrongful birth claim, you're essentially saying if someone had done their job, I would not have had this baby. I would have had this baby and this baby would have been better, and the law doesn't allow that,” explained James Johnson, the donor’s attorney.
“A federal judge, a Georgia Superior Court judge and a Georgia State Court judge have each separately looked at Georgia law and have correctly dismissed six identical cases based on valid Georgia precedent,” said Ted Lavender, an attorney for the sperm bank.
“Xytex in fact performed all the testing on this donor that it said it was going to perform,” Lavender’s statement continued. “Xytex also prominently warned potential purchasers, ‘The medical and social history was provided by the donor and cannot be verified for accuracy.’”
Norman’s attorneys say their appeals have another goal -- to push for sound regulation in an unregulated sperm bank industry, and for Xytex to pay for a medical fund.
“My wish is that Xytex would notify everybody who had this particular donor, so that they can get the proper care for their kids,” Hersh said. ”In fact, I requested of Xytex at one point that they set up a medical monitoring fund so that they can pay for the care to kids who haven’t manifested that are at risk.”
“Plaintiff’s counsel claims to pursue cases in Georgia courts to effect change in the regulation of sperm banks nationally, but sperm banks are already regulated nationally by the FDA, a federal agency that has a process for citizens to suggest changes to its regulations,” Lavender countered.
Wendy Norman just wants some assurances for her son, who has been through extensive therapy.
“Now it's so limbo,” she said. “He's doing great. But what’s coming? And when?”
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