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Wrongful Birth Claims Barred Under Georgia Law

In October 2015, a Fulton County judge reinforced Georgia’s long held refusal to recognize wrongful birth claims in the state, by dismissing a lawsuit filed by a Canadian couple earlier in the year. The lawsuit was filed by Angela Collins and Margaret Hanson against Xytex Corp., the Georgia based sperm bank they worked with to conceive their now seven year old child. In their suit, the couple alleges the sperm bank wrongfully lead them to believe the sperm donor was a neuroscientist, when he was actually an ex-felon with no college degree.

While the Canadian couple styled their lawsuit as a product liability and fraud case, Fulton County Judge Robert McBurney found, based on the couple’s allegations, that the case was in fact a wrongful birth claim. In his order dismissing the case, Judge McBurney cited a 1990 Georgia Supreme Court decision, Atlanta Obstetrics & Gynecology v. Abelson, 261 Ga. 711, when he wrote: “at base [the plaintiffs] are challenging the purported negligence that resulted in an unwanted conception with unwanted results. This claim most closely (though by no means perfectly) fits a claim for wrongful birth—and so is not allowed. The reason for this is both simple and profound: courts are ‘unwilling to say that life, even life with severe impairments, may ever amount to a legal injury.’”

Although Judge McBurney dismissed the couple’s lawsuit citing Georgia’s refusal to recognize such claims, the Judge did conceded that Georgia’s law may need to be reexamined given the advancements in reproductive technologies such as in vitro fertilization, artificial insemination and embryo transplantation over the past few years. It is true that reproductive technology has advanced at lightning speed over the past few years, and on the whole, Georgia law fairly addresses most concerns associated with these advancements. If faced with continued suits like the one filed Angela Collins and Margaret Hanson, it would not be surprising to see a shift in the way Georgia courts address such suits.


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