               Case: 18-11164   Date Filed: 02/04/2019   Page: 1 of 15


                                                          [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-11164
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:17-cv-04851-TWT



RENE ZELT,
TRAYCE ZELT,

                                                  Plaintiffs - Appellants,



                                      versus



XYTEX CORPORATION,
a Georgia Corporation,
XYTEX CRYO INTERNATIONAL LTD.,
a Georgia Corporation,
MARY HARTLEY,
an individual,
J. TODD SPRADLIN,
an individual,

                                                  Defendants - Appellees,

DOES 1 - 25,
inclusive,
                Case: 18-11164   Date Filed: 02/04/2019   Page: 2 of 15




                                                   Defendants.

                            ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                 (February 4, 2019)

Before TJOFLAT, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:

      Rene and Trayce Zelt sued Xytex Corporation and other defendants

connected to Xytex’s sperm bank operations for misrepresenting to them the

characteristics of the sperm donor they selected to fertilize the eggs that have

grown into their two children. The district court granted the defendants’ motion to

dismiss based on Georgia Supreme Court precedent denying recognition of tort

actions for wrongful birth. Although we are deeply troubled by the defendants’

alleged conduct in this case, our careful review of the Zelts’ claims leads us to

conclude that we must affirm the district court’s grant of the motion to dismiss.

           I.      FACTUAL AND PROCEDURAL BACKGROUND

      We draw the facts directly from the Zelts’ complaint and construe them in

the light most favorable to the Zelts. Chaparro v. Carnival Corp., 693 F.3d 1333,

1335 (11th Cir. 2012). The Zelts have two children who were conceived by



                                          2
                 Case: 18-11164       Date Filed: 02/04/2019        Page: 3 of 15


artificial insemination with semen the Zelts purchased from Xytex, a for-profit

vendor of human semen.

      On its website, Xytex promised it would carefully screen men applying to

donate sperm using interviews and a physical exam to ensure their suitability to

become a donor. Its website also stated that Xytex would conduct physical exams

every six months to confirm donors’ “continued good health,” update online donor

profiles, and convey new information learned about donors to clients who used

sperm purchased from Xytex so that clients could “make the most informed

decision possible when selecting a donor.” Doc. 1 ¶¶ 16-17 (internal quotation

marks omitted).1

      When the Zelts contacted Xytex about purchasing sperm, the company

pointed them to Donor #9623. Xytex declared on its website and in statements

made directly to the Zelts that Donor #9623 had bachelor’s and master’s degrees

and was working on a Ph.D., had an IQ of 160, had a “nearly perfect” medical and

mental health history, had no criminal background, and was one of Xytex’s most

sought-after donors. Id. ¶ 30. Xytex further represented that Donor #9623’s sperm

were rarely available.

      Based on Donor #9623’s characteristics and Xytex’s representations about

its screening process and its pledges to update sperm recipients with new

      1
          Citations in the form “Doc. #” refer to numbered entries on the district court’s docket.

                                                  3
                Case: 18-11164       Date Filed: 02/04/2019       Page: 4 of 15


information, the Zelts decided to purchase Donor #9623’s sperm from Xytex.

Twice Rene Zelt was artificially inseminated with Donor #9623’s sperm, and she

gave birth to two children. Other prospective parents also purchased Donor

#9623’s sperm; he is the biological father of 36 children.

       As it turns out, Donor # 9263 is James Christian Aggeles, a man with

characteristics the Zelts find highly undesirable. Before the Zelts purchased his

sperm, Aggeles had: been diagnosed with psychotic schizophrenia, narcissistic

personality disorder, a drug-induced psychotic disorder, and significant grandiose

delusions; been hospitalized repeatedly for mental health reasons; received Social

Security Disability Insurance due to a finding that he was disabled; and been

arrested for burglary, trespassing, driving under the influence, and disorderly

conduct. He has no master’s degree, was never enrolled in a Ph.D. program, and

had dropped out of school, only earning a college degree years after the Zelts

purchased his sperm and used it to inseminate Rene Zelt. He also has a felony

conviction, having pled guilty to residential burglary. 2

       When Aggeles applied to Xytex to become a sperm donor, he lied on his

written questionnaire about his educational achievements and mental health

background. After Aggeles told a Xytex employee that he thought his IQ was



       2
        It is unclear from the record whether this conviction occurred before or after the Zelts
purchased his sperm or before or after Rene Zelt was artificially inseminated.

                                                4
              Case: 18-11164    Date Filed: 02/04/2019    Page: 5 of 15


about 130, the employee suggested to him that he had an IQ of 160. The employee

also informed Aggeles that more educated donors were more successful in selling

their sperm and encouraged Aggeles to lie on his application about his education.

Accordingly, Aggeles falsely represented on the questionnaire that he had

bachelor’s and master’s degrees and was enrolled in a Ph.D. program. He also

failed to disclose that he had been hospitalized twice for mental health reasons and

been prescribed anti-psychotic medications. Shortly after Aggeles applied, Xytex

approved him as a sperm donor and assigned him number 9623.

      Xytex easily could have determined that none of these representations about

Donor #9623 was true. For example, if Xytex had conducted a simple Internet

search using Google, it would have discovered that Aggeles had not completed

college, had been diagnosed with schizophrenia, and had been convicted of a

felony. Aggeles’s physical exam with Xytex’s staff lasted only ten minutes, and

the examiner never discussed his physical or mental health history with him.

Xytex did nothing to verify the validity of the representations it made to the Zelts

regarding Donor #9623. It never requested Aggeles’s medical records or asked

him to sign a release so it could obtain his medical records, never asked about his

mental health history or spoke to any of his mental health providers, never asked

about his criminal history, never requested any proof of his identification, and




                                          5
              Case: 18-11164     Date Filed: 02/04/2019   Page: 6 of 15


never attempted to confirm his educational history. Xytex has never contacted the

Zelts to provide any additional information about Aggeles.

      Years after their children were born, the Zelts learned Donor #9623’s

identity, conducted an Internet search using Google, and immediately discovered

that Xytex’s representations about Donor #9623’s education, medical and mental

health, and criminal background were false. Aggeles’s mental illnesses are genetic

and hereditary, making it possible or probable that the Zelts’ children have or will

develop one or more of the same illnesses. The Zelts suffered physical and

emotional pain and suffering as a result of learning the truth about their sperm

donor. The Zelts also incurred costs to purchase Donor #9623’s sperm, have

already spent money to evaluate their children for mental illnesses, and expect to

have to spend more money in the future to evaluate and treat their children.

      The Zelts filed a complaint in federal court alleging thirteen state law claims

against Xytex and various affiliated individuals. The defendants moved to dismiss

the Zelts’ complaint for failure to state claims for which relief could be granted.

See Fed. R. Civ. P. 12(b)(6). The district court granted the motion on the basis that

the claims boil down to a wrongful birth claim, which Georgia law does not

recognize. See Atlanta Obstetrics & Gynecology Grp. v. Abelson, 398 S.E.2d 557,

560 (Ga. 1990). The Zelts timely appealed.

                        II.    STANDARD OF REVIEW


                                          6
                Case: 18-11164       Date Filed: 02/04/2019        Page: 7 of 15


       We review de novo a district court’s grant of a defendant’s motion to dismiss

for failure to state a claim, Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th

Cir. 2016), and the district court’s rulings on questions of state law, Salve Regina

Coll. v. Russell, 499 U.S. 225, 231 (1991). At the motion to dismiss stage, we

accept the well-pleaded allegations in the complaint as true and view them in the

light most favorable to the Zelts. See Chaparro, 693 F.3d at 1335. A complaint

must contain enough facts to make a claim for relief “plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

                                    III.    DISCUSSION

       The core of the Zelts’ complaint is that they are entitled to money damages

for claims sounding in Georgia contract, tort, and statutory law3 and arising out of

Xytex’s misrepresentations to them about the characteristics of Donor #9623. In

essence, the Zelts claim that Xytex perpetrated a fraud by making representations

about Donor #9623 that Xytex knew would induce the Zelts to purchase his sperm.

Had they known the truth about Donor #9623’s background, the Zelts would have



       3
          Because the parties agree that Georgia law applies to all claims in this case, and the
Zelts do not argue that the application of Georgia law would be manifestly unjust, we need not
engage in any choice-of-law analysis. Instead, we assume that Georgia law applies. See Smith v.
N.Y. Life Ins. Co., 579 F.2d 1267, 1270 n.5 (5th Cir. 1978) (holding that, where the parties relied
in the district court on the application of Georgia law even though Utah law should have
governed the case, the parties were bound on appeal by Georgia law, “absent some manifest
injustice”). Decisions of the former Fifth Circuit rendered prior to the close of business on
September 30, 1981 are binding on this Court. See Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).

                                                7
              Case: 18-11164     Date Filed: 02/04/2019    Page: 8 of 15


acquired sperm from a different donor, one who had characteristics they found

desirable. As a result of purchasing Donor #9623’s sperm from Xytex and using it

to fertilize the eggs that became their two children, the Zelts contend, they have

been harmed by Xytex’s fraud. But the Zelts face an insurmountable hurdle:

under the authority of Georgia’s highest appellate court, they have suffered no

legally cognizable injury. As we elaborate below, we must affirm the dismissal of

all of the Zelts’ claims that necessarily entail pleading an injury equal to the

difference in the value of a child’s life with Aggeles as the sperm donor and the

value of a child’s life with a different donor.

      The Zelts’ case rises and falls on whether their claims are actually for

wrongful conception (which Georgia law recognizes) or wrongful birth (which

Georgia law does not recognize). The Zelts attempt to distinguish their claims

from wrongful birth claims, but we conclude that their claims pose the same

concerns that the Georgia Supreme Court voiced regarding wrongful birth claims,

and so the Zelts’ claims fail as a matter of law.

      A claim for wrongful conception, also known as wrongful pregnancy,

alleges that, had the medical provider properly performed a sterilization or abortion

procedure, the plaintiff would not have become pregnant. See Fulton-DeKalb

Hosp. Auth. v. Graves, 314 S.E.2d 653, 654 (Ga. 1984). The damages recoverable

include “expenses for the unsuccessful medical procedure [that] led to conception


                                           8
              Case: 18-11164     Date Filed: 02/04/2019       Page: 9 of 15


or pregnancy, . . . pain and suffering, medical complications, costs of delivery, lost

wages, and loss of consortium.” Id. Costs of child-rearing are excluded, however,

due to courts’ discomfort with the notion that a parent could be “said to have

suffered an injury in the birth of a child.” Id. at 655-56.

      In contrast, a claim for wrongful birth alleges that a medical provider failed

to provide advice, information, or treatment that, had it been provided, would have

led the parents to terminate the pregnancy. See Abelson, 398 S.E.2d at 559-60.

The Georgia Supreme Court has held that wrongful birth claims are not actionable

under Georgia law. Id. at 560. In Abelson, the court noted two main concerns.

One was that the medical provider’s actions did not cause the impairment to the

child that the parents found objectionable; rather, the cause of the impairment was

the child’s genetic composition as determined at conception. Id. at 560-61. The

other concern echoed the reason why the court refused to allow the costs of child-

rearing as damages in wrongful conception actions: the court was unwilling to

declare that “life, even life with severe impairments, may ever amount to a legal

injury.” Id. at 561 (internal quotation marks omitted and alternation adopted).

      Graves and Abelson establish the following guideposts. In a wrongful

conception action, the plaintiff never wanted to become pregnant in the first place.

The harm the plaintiff alleges is the pregnancy itself, so pregnancy-related

damages are allowed, but not damages related to child-rearing, which is not a


                                           9
               Case: 18-11164        Date Filed: 02/04/2019       Page: 10 of 15


legally cognizable injury. In a wrongful birth action, by contrast, the plaintiff

wanted to become pregnant but did not want to give birth to an impaired child.

The harm the plaintiff alleges is the birth of the impaired child, and Georgia courts

will not compare the value of an impaired child’s life to the child’s nonexistence.

The Zelts try to cast their claims as closer to wrongful pregnancy claims; Xytex

tries to cast their claims as closer to wrongful birth claims.

       The Zelts’ complaint leaves ambiguous what exactly they are alleging as the

harm they suffered. For example, their first cause of action states that, had they

known the true facts, the Zelts “would not have purchased the sperm of Donor

#9623 from Defendants, and Plaintiffs have been harmed as a result of Defendants’

deceit and fraud.” Doc. 1 ¶ 44. Many of their other claims refer only to the Zelts’

“harm,” “injuries,” or “losses.” See, e.g., id. ¶¶ 48, 55, 58, 60, 65. On appeal, they

argue, “But for [Xytex’s] reckless and negligent conduct, the Zelts would have

conceived children with a healthy biological father.” Reply Br. at 10. Put

differently, their argument is that their children may have inherited undesirable

qualities from Aggeles that they would not have inherited from another sperm

donor. 4




       4
         Drawing all inferences from the facts alleged in the complaint in the Zelts’ favor, we
assume that the use of Aggeles’s sperm is or will be the cause of any undesirable characteristics,
such as mental illness, their children may currently have or will develop in the future.

                                                10
             Case: 18-11164     Date Filed: 02/04/2019   Page: 11 of 15


      Facing the problem of fitting a square peg into a round hole, the district

court labeled the Zelts’ complaint a barred wrongful birth action. We agree with

the Zelts, however, that they did not ask the court to compare their two children’s

possibly impaired existence to their nonexistence, which is the essence of a

wrongful birth action. Rather, the relevant counterfactual is the children’s

existence had their parents used sperm donated by someone other than Aggeles.

The difference between the children’s lives with Aggeles as the donor versus their

lives with a healthy donor is the impairments the children might have or develop as

a result of inheriting Aggeles’ genetic make-up.

      Assigning a numeric value to a person’s existence with impairments, which

the Georgia Supreme Court in Abelson would not countenance, is not the same as

assigning a numeric value to the impairments only, on which the Georgia Supreme

Court has not opined. But these tasks are similar enough that we read Abelson’s

reasoning as foreclosing us from undertaking the latter. Inherent in asking this

Court to compensate the Zelts for Xytex’s failure to ensure that their children

would be conceived using a healthy sperm donor is the notion that they would have

preferred children without the impairments the children might have or develop

because Aggeles is their biological father. We are sympathetic to the Zelts’ pain

and fear over what they and their children stand to suffer. But we would be

extending Georgia law beyond what state law authorizes were we to recognize that


                                         11
               Case: 18-11164       Date Filed: 02/04/2019      Page: 12 of 15


the Zelts have suffered a legally compensable injury because their children may be

different from what the Zelts envisioned when, as a result of Xytex’s alleged

deceit, they purchased Donor #9623’s sperm and underwent artificial insemination.

       The Zelts argue that awarding damages for costs arising out of their

pregnancies—the cost of prenatal care, lost wages during pregnancy and childbirth,

and pain and suffering during pregnancy and childbirth—would require no

calculation of the value of the children’s possible impairments. This is true, but it

is logically inconsistent for the Zelts to argue that the relevant counterfactual is

giving birth to healthy, non-impaired children (to avoid having their claims

dismissed under Abelson) and to argue simultaneously that the relevant

counterfactual is non-conception (to enable their claims to proceed under Graves).

To the extent the Zelts are alleging, in the alternative, a wrongful conception claim

(which would entitle them to pregnancy-related expenditures and losses under

Graves), this claim is not “plausible,” Twombly, 550 U.S. at 570, because the Zelts

clearly wanted to become pregnant and to give birth. 5


       5
         The Zelts also attempt to distinguish Abelson and other Georgia cases because those
cases involved “(1) an incurable genetic disease that was created at the time of conception and
(2) a negligent failure to diagnose that occurred post-conception.” Reply Br. at 4. The Zelts’
argument speaks only to the Abelson court’s concern about causation—that it was improper to
blame the child’s impairment on the doctor’s failure to diagnose because the proximate cause of
the child’s impairment was the genetic disease created at the time of conception. The Zelts
attempt to negate the causation problem by arguing that, if they had known the truth about Donor
#9623 before insemination (and conception), they would have selected a different donor—so the
cause of their children’s impairment becomes Xytex’s misrepresentations. This argument fails to
address their injury, which we have already declined to recognize as a compensable legal injury.

                                              12
                Case: 18-11164        Date Filed: 02/04/2019        Page: 13 of 15


       In sum, our reading of Abelson forecloses us from recognizing as a legal

injury the Zelts’ children’s inheritance from Aggeles of characteristics the Zelts

find objectionable and that their children allegedly would not have inherited from a

different sperm donor. Monetizing the detrimental value of these characteristics is

a task “more properly suited to legislative action[,] as the legislature offers a forum

wherein all of the issues, policy considerations and long range consequences

involved . . . can be thoroughly and openly debated and ultimately decided.”

Abelson, 398 S.E.2d at 563. We affirm the dismissal of all of the Zelts’ claims that

allege as the injury their children’s inheritance from Aggeles of objectionable

characteristics that the children would not have inherited from a different donor. 6

These include the Zelts’ claims for fraud, negligent misrepresentation, products

liability (including strict liability and negligence), breaches of express and implied

warranties, negligence, unfair business practices,7 and false advertising, as well as

the part of their claim for promissory estoppel that requests money damages.


       6
         Part of the Zelts’ request for damages is to cover the cost of care for their children for
conditions that may be attributable to Aggeles. Even if the Zelts proved a causal connection
between Aggeles’s genes and their children’s present or future mental or physical conditions,
Abelson bars any award of extraordinary costs. Abelson, 398 S.E.2d at 561 (explaining that
awarding extraordinary costs of child-rearing but disallowing ordinary costs of child-rearing
would “require[] a contortion of the traditional rule of recoverable damages that defies all logic
and explanation”).
       7
          As to the Zelts’ claim for injunctive relief under the Georgia Fair Business Practices
Act, they still must establish injury to prevail. See O.C.G.A. § 10-1-399(a) (“Any person who
suffers injury or damages . . . as a result of consumer acts or practices . . . may bring an action
individually . . . to seek equitable injunctive relief[.]” (emphasis added)); Zeeman v. Black,
273 S.E.2d 910, 916 (Ga. Ct. App. 1980). This claim therefore fails for the same reasons.

                                                 13
               Case: 18-11164        Date Filed: 02/04/2019       Page: 14 of 15


Although these claims do not exactly fit the mold of a wrongful birth claim, they

suffer from the same fatal flaw: requiring this Court to recognize as an injury the

possibility that their children were born with what the Zelts deem to be undesirable

characteristics.

       For the same reason, we also affirm the dismissal of the Zelts’ claim for

unjust enrichment and their attendant demand for disgorgement of “the payments

received from Plaintiffs.” Doc. 8 at 33. Although the amount by which Xytex was

enriched is easy to calculate, calling this enrichment “unjust” necessarily implies

that the Zelts’ children somehow are worth less than they would have been worth

had they been conceived using a different donor’s sperm. See, e.g., Engram v.

Engram, 463 S.E.2d 12, 15 (Ga. 1995) (measuring unjust enrichment by the

“enhance[ment] [in] the value” the defendant received). Abelson precludes us

from recognizing this claim as well.8

                                   IV.     CONCLUSION



       8
          The Zelts have abandoned on appeal their remaining claims for battery and specific
performance and the part of their claim for promissory estoppel that requests injunctive relief.
The scant mention of these claims and requested remedies in their opening brief, coupled with
the absence of any citations to case law, are insufficient to preserve these claims on appeal. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014) (holding that
abandonment occurs when only “passing references appear in the argument section of an
opening brief, particularly when the references . . . are buried within those arguments” and the
brief “cites no authorities” (internal quotation marks omitted)). We thus affirm the dismissal of
these claims. See Bonanni Ship Supply, Inc. v. United States, 959 F.2d 1558, 1561 (11th Cir.
1992) (“[T]his court may affirm the district court where the judgment entered is correct on any
legal ground regardless of the grounds addressed, adopted or rejected by the district court.”).

                                                14
             Case: 18-11164      Date Filed: 02/04/2019    Page: 15 of 15


      Reckless, reprehensible, and repugnant, Xytex and its employees’ alleged

conduct undoubtedly caused severe emotional harm to the Zelts and other families

who purchased Donor #9623’s sperm. But we must look to and faithfully apply

Georgia law. The Georgia state courts or the State’s legislature may decide to

recognize wrongful birth claims or claims like the Zelts’ claims for the wrongful

and fraudulent sale of sperm. Until the State has done so, however, we cannot

recognize as a private legal injury the birth of a child with actual or potential

undesirable inherited characteristics.

      For the foregoing reasons, we AFFIRM the district court’s grant of the

defendants’ motion to dismiss.

      AFFIRMED.




                                           15
