Three Ontario families are taking a US sperm bank and its Ontario distributor to court for allegedly giving them false information about their sperm donor, whom they say turned out not to be the healthy genius they thought he was, but a convicted felon with multiple diagnoses of mental illnesses.
The lawsuit, alleging wrongful birth, failure to investigate, and fraud against Atlanta-based Xytex Corp. and Aurora-based Outreach Health Services, says the companies advertised and sold the sperm of "Donor 9263" even after being told about significant discrepancies between his donor profile and who he was in real life.
The families are from Port Hope, Ottawa, and Haileybury, and have each had a child — aged 8, 6, and 4 respectively — using the man's sperm, which has been used to conceive a total of 36 children in Canada, the US, and in the UK, The families are demanding $15.4 million in damages, according to the Toronto Star.
The donor's real identity — he is identified by the lawsuit as 39-year-old James Christian "Chris" Aggeles — was revealed in 2014 when Xytex accidentally disclosed his email address to families using his sperm
"What makes this truly bizarre and frightening is that the truth was only learned because of Xytex's failure to properly maintain their donor's anonymity," James Fireman told VICE News.
In a statement, a lawyer for Xytek told VICE News the company "looks forward to successfully defending itself from the new lawsuits."
Online searches about Aggeles by the families led them to several shocking discoveries that made headlines around the world last year. Omitted from his donor profile, Aggeles had been diagnosed with schizophrenia, narcissistic personality disorder, drug-induced psychotic disorder, and significant grandiose delusions, the Star reported.
He also had a criminal record and eight months in prison under his belt for a 2005 residential burglary, according to court documents.
Contrary to his donor profile, which said Aggeles had an IQ of 160, had a masters degree, extensive training in music and kinesthetics, and was pursuing a PhD in neuroscience engineering, the man has an IQ of 130 only recently graduated, two decades after enrolling, from university with a bachelor's degree.
'What makes this truly bizarre and frightening is that the truth was only learned because of Xytex's failure to properly maintain their donor's anonymity.'
He was accepted as a sperm donor in 2000 without so much as having to show his driver's license to prove his identity, the Star reported, citing court documents.
The families are accusing Xytex of continuing to sell Aggeles' sperm until January of 2016, and Outreach for doing so until January of last year, despite being informed of his medical history and criminal record in 2014.
A lawyer in San Francisco, who is already representing several families in other lawsuits against Xytex, has said there are plans to file more.
A lawsuit filed by Port Hope couple Angela Collins and Beth Hanson was dismissed in October by a Georgia court because the judge believed the claim to be based on wrongful birth, a concept not recognized under Georgia law.
In his decision, however, Judge Robert McBurney wrote the plaintiffs made a "compelling argument" that there should be a way to "pursue negligence claims against a service provider in pre-conception services."
"Science has once again — as it always does — outstripped the law," he wrote.
An appeal was also dismissed in March because it was filed shortly after the 30-day deadline had passed.
"The trial judge and the Court of Appeals got it right," Xytek lawyer Ted Lavender said in an email, adding that the dismissal of the appeal received little media attention.
"Pursuing claims in a court of law requires actual evidence and proof," he said. "Making unfounded allegations in the court of public opinion requires no actual proof at all, but merely the word of the very lawyers and litigants who already failed in a court of law.
"Xytex is an industry leader and complies with all industry standards in how they safely and carefully help provide the gift of children to families who are otherwise unable have them without this assistance."
Follow Tamara Khandaker on Twitter: @anima_tk