Court of Appeals: No Such Thing as “Wrongful Birth” Claims in Georgia

You probably have heard the term “wrongful death” in the context of personal injury law. Basically, this is a lawsuit that alleges a defendant’s negligence led to the death of the victim. The victim’s estate or heirs then have the legal right to seek damages from the responsible parties.

Some states also recognize a lesser-known type of claim referred to as “wrongful birth.” For example, if a doctor commits malpractice by failing to inform expectant parents of a serious genetic defect in their unborn child, the parents could bring a lawsuit arguing they would have aborted the fetus but-for the doctor’s negligence. The parents could then seek compensation to offset the additional costs of caring for their child.

Norman v. Xytex Corporation

Georgia courts, however, do not recognize wrongful birth claims. The Georgia Court of Appeals recently addressed this subject in a case, Norman v. Xytex Corporation, involving a couple that accused a sperm bank of providing them with a genetically defective donor sample. The couple alleged their donor lied about his educational, health, and criminal history. More specifically, the donor had a history of drug and psychological disorders and spent eight months in jail for committing burglary. Had the plaintiffs known this information, they maintain they would never have used his sample to conceive their child.

According to their lawsuit, the plaintiffs’ now-9-year-old child suffers from attention deficit hyperactivity disorder, an “inherited blood disorder,” and mental health problems that require treatment with antidepressants.

In response, the defendant sperm bank argued the plaintiff’s arguments amounted to a “wrongful birth” claim, which the Georgia Supreme Court has previously said does not exist under this state’s common law. The judge agreed, noting that there are recognizable claims for “wrongful pregnancy” or “wrongful conception,” but not wrongful birth. On that basis, the judge dismissed most of the plaintiffs’ claims against the defendant.

The plaintiffs appealed. But the Court of Appeals agreed with the trial judge. The appeals court explained that as a matter of law, a “parent cannot be said to have suffered an injury in the birth of a child.” This is true even in cases where, as the plaintiffs maintain, their child was born with “severe impairments.” Ultimately, it is up to the legislature to address such situations, not the courts.

Damages Available for Wrongful Conception or Wrongful Pregnancy

As noted above, while Georgia does not recognize a personal injury for wrongful birth, it does recognize claims arising from wrongful conception or wrongful pregnancy. The Court of Appeals explained that damages in such cases may include the “expenses for the unsuccessful medical procedure which led to the pregnancy, pain and suffering, medical complications, costs of delivery, lost wages, and loss of consortium.” However, it does not include any damages or expenses related to raising the actual child for the reasons discussed above regarding wrongful birth claims.