FIFTH DIVISION
RICKMAN, C. J.,
MILLER, P. J., and REESE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
August 30, 2021
In the Court of Appeals of Georgia
A20A0040. CRUZ et al. v. XYTEX CORPORATION et al.
REESE, Judge.
This case is before us on remand from the Supreme Court of Georgia. In the
original case, Cruz v. Xytex Corporation, (“Cruz I”),1 Jennifer Cruz, C. F. J., J. T. S.,
M. S., and L. S. (“the Appellants”) appealed from the trial court’s order granting a
motion to dismiss filed by Xytex Corporation, Xytex Cryo International, J. Todd
Spradlin, and Mary Hartley (collectively, “Xytex”) for damages based on sperm
procured from Xytex that resulted in children with developmental issues. We affirmed
in part and vacated in part.
In Norman v. Xytex Corporation, the Supreme Court of Georgia held that
claims which would require recognizing a child’s life as an injury could be dismissed
1
No. A20A0040 (Ga. Ct. App., June 24, 2020).
because “Georgia law does not recognize claims for damages that depend on life as
an injury.”2 However, it also held that “[a]lthough Georgia law does not recognize life
as an injury, there can be injuries that predate a child’s birth and are not premised on
the child’s life as an injury.”3
[I]n both pre- and post-conception cases, Georgia law has recognized
that a cognizable claim may exist for pre-birth injuries to a child without
deeming the child’s existence an injury. Any such claims . . . are not
wrongful birth claims and should not [be] dismissed on that ground.4
As the Supreme Court further stated, “[t]o the extent that [the Appellants] have pled
claims predicated on injuries that are not predicated on life as an injury, these claims
are not barred[.]”5
Therefore, in light of the Supreme Court’s ruling, we vacate the trial court’s
ruling on the Appellants’ motion to dismiss, and remand to the trial court with
instruction to determine, consistent with the Supreme Court’s decision in Norman,6
2
310 Ga. 127, 133 (2) (b) (848 SE2d 835) (2020).
3
Id. at 134 (2) (c).
4
Id. at 135 (2) (d) (punctuation and footnote omitted).
5
Id. at 138 (2) (e).
6
310 Ga. 127.
2
whether and to what extent the Appellants have adequately pled claims that do not
derive their injury from their children’s lives.
Judgment vacated and case remanded with direction. Rickman, C. J., and
Miller, P. J., concur.
3