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Judge: Families can sue Ga. sperm bank company for negligence

Xytex is accused of selling the sperm of man who had a genetic mental disorder who failed to disclose it.

A Georgia company will have to explain to a jury why it sold families the sperm of a man diagnosed with bi-polar schizoaffective disorder, an illness that can be hereditary.

The sperm bank, Xytex, had filed a motion to dismiss the lawsuit against it in California, but a federal judge denied the bulk of that motion. There are more than a dozen similar lawsuits playing out in courts across the country and Canada. A ruling to dismiss this case would have likely impacted those efforts.

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The judge did rule the plaintiffs, in this case a same-sex couple living in San Francisco, failed to make an argument for strict liability, breach of warranties and battery. But Judge William Alsup did allow the couple to continue suing for intentional and negligent mispresentation, wrongful birth, false advertising and unfair business practices.

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In Alsup’s opinion he wrote: “If Xytex had screened Donor #9623 as carefully as Xytex claimed to screen donors, then Donor #9623 would not have been held out to be a model man and likely would have been rejected. Xytex surely knew that it failed to screen up to the standard it advertised.”

The case is set for trial in November. A similar case in Florida is scheduled to go before a jury in federal court there, on Sept. 5.

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