Paul Spella / The Atlantic

To the mothers, he was just Donor 9623. They did not know his name, but from his glowing sperm-donor profile, they knew he had an IQ of 160, spoke four languages, was pursuing a doctorate in neuroscience engineering, and looked like Tom Cruise.

But Donor 9623 wasn’t who he said he was. He wasn’t in graduate school. He had never even finished college. The lies began to unravel in 2014, when the sperm bank accidentally revealed his name—Chris Aggeles—and his email address in a message to a group of mothers. By then, the sperm he’d produced over 14 years had been sent to multiple states and three countries, resulting in at least 36 children. Curious, the mothers Googled him and found a comment he’d left online about “hearing voices.” They later found out that he had been hospitalized for mental illness, had been on disability, was suicidal at one point, and pleaded guilty for burglary—all before or during the time he was donating sperm.

The sperm bank, Xytex, didn’t know any of this, and it hadn’t verified any of the biographical information that was in his profile, according to lawsuits since filed by the mothers. They were shocked to realize how unregulated sperm banks are. And now they worried that their children might have inherited a predisposition to mental illness. Since 2016, they have filed more than a dozen lawsuits against the sperm bank; one case is currently pending before the Georgia Supreme Court. (Xytex did not respond to a request for comment.)

I discussed the case of Donor 9623 with Dov Fox, a professor of health law at the University of San Diego. Fox covered the lawsuits in his book, Birth Rights and Wrongs, and he has spent the past year diving even deeper into the case of Donor 9623—interviewing parents who were deceived, children coming to terms with their genetic inheritance, and eventually the donor himself for a new Audible podcast.

Fox and I have spoken before about the ways embryo mix-ups and other examples of reproductive technology gone awry confound the law and the very notion of parenthood. Tens of thousands of babies are born with the help of reproductive technology every year in the U.S., yet fertility clinics and sperm banks remain surprisingly unregulated. Mistakes, when they happen, have deeply existential consequences. Before the podcast’s release last week, we talked again about Donor 9623 and how courts try to make sense of the uncomfortable idea of “wrongful birth,” a term that he argues makes no sense.

This interview has been edited for length and clarity.

Sarah Zhang: In your book, you covered several cases where reproductive technology gone wrong poses these really hard questions: white parents who were inseminated with the wrong donor sperm and ended up with a Black child, parents who had aborted based on an incorrect fetal diagnosis, a surrogate who didn’t want to relinquish the child. What specifically drew you to this case of Donor 9623 so much that you wanted to do a whole podcast about it?

Dov Fox: I thought this case was really gray. It wasn’t that there was just an obvious loophole in the legal framework or the law hadn’t caught up to the advances in technology. It raised really deep, hard, fundamental questions about human existence, with an eye to the future of gene editing and embryo screening—what it means to be a parent and what is reasonable for would-be parents to expect. That’s an uncomfortable place for judges and for lawmakers.

This was one of the very largest and most international sperm banks that shipped to tens of thousands of parents in dozens of countries all over the world. This is an especially popular donor for more than a decade. And there were so many parts of his history that were concealed or misrepresented—his health and his criminal record and his educational background.

Zhang: You say this is an uncomfortable place for judges and lawmakers, and while wrongful-birth lawsuits get a lot of attention, they haven’t been very successful in court in the U.S. Why is that?

Fox:  A lot of courts that say no to wrongful-birth claims say it’s about protecting the individual children. And there’s intuitive appeal to this idea. God, how awful would it sound to the child to learn that their life, their existence, is wrongful—that their parents didn’t want them, don’t want them, wanted a different kid instead, don’t love them. That’s not what parents intend, but that doesn’t necessarily mean that it doesn’t express that, whether to their kids or to other groups who have the very condition that their kids have.

But of the kids that I talked to for this podcast, by the time they were old enough to be made aware of any issues about how they came into the world or anything about a lawsuit, they were already really confident that their parents loved them completely. Any self-doubt that may have been caused by learning that they were part of a lawsuit like this might be less bad for those kids on balance than not having their needs met—medical, educational, or otherwise—by the financial relief the parents might be entitled to in the face of reproductive misconduct.

Zhang: One tension I felt when listening to the podcast is: Do these wrongful-birth cases create the stigma around disability or illness? Or can these lawsuits actually provide meaningful redress for a child with a disability who will experience stigma in their life, and is that explicit acknowledgement of stigma—and putting it in monetary terms—also what makes us uncomfortable?

Fox: Stigma and shame are a huge part of this. I don’t think it’s either/or. It’s absolutely both. It’s also a stigma and shame around what it means to be a parent: How dare you question anything about the child you have or the fact that you are a parent or that your child has trouble doing certain things or needs certain kinds of care? If we’re being really honest with ourselves, there are few things that can make you happier than raising your kids. But it’s still demanding, stressful work. And an unexpected child or one with unexpected health issues radically changes how you spend your days, and how you plan your life.

This ambivalence that we refuse to recognize today is to me what makes the term wrongful birth make no sense. And here’s why: Suing for wrongful birth, it makes it sound as if you either love your kids or you hate him. Either you value people with disabilities, or you think they’re too flawed in their DNA even to exist. If you recognize this ambivalence I’m suggesting, it’s not either/or like that. It’s not that you love your kids or you don’t; that you think people with disabilities have worth or they're defective.

We need to rename this cause of legal action. It’s not wrongful birth, but the loss of reproductive freedom. The harm isn’t that you had a child or that you have the child that you do. It’s that you were denied agency over this part of your life. And here’s a really important point: Taking this logic of banning wrongful-birth suits to its conclusion allows a medical professional, who is entrusted to help fulfill your reproductive interests, deliberately lie to you.

Zhang: I’m interested in your reframing of wrongful birth as instead a “loss of reproductive freedom.” The expectation of reproductive freedom—this is also relatively new, right? Access to abortion and birth control have changed dramatically in the past century. The ambivalence we still feel is maybe that in some way, reproduction is about giving up some degree of freedom, because you're creating another person who has their own wills and wants.

Fox: Oh my gosh, 100 percent yes. I feel myself grasping for a more familiar analogy. I find myself with two, and neither of them seemed like a great fit. One is the basic safety that we insist on in the cars we drive or the food we eat. It's a matter of public safety. And if you do that, you would allow parents to sue for false advertising and you would just see whether these sperm banks were honest brokers.

But on the other hand, there’s the random genetic recombination that we accept. Part of being a parent is entering this domain in which, almost uniquely, we lack choice and control. This is God or fate or nature. This case in particular raises those questions, not just about health but also about education and criminal history and looks, intelligence. What’s okay to want in a child when you’re in a position to choose which eggs or embryos or fetuses to fertilize or implant or carry to term? Just no serious disease with a clear genetic cause? Or also dispositions to less debilitating conditions? How about physical resemblance? Even race? Or what about height or perfect pitch or good looks? At what point does it cross the line from just wanting the best for your future kid to designing a baby to suit your tastes?

The analogies are both imperfect, because a baby isn’t a product—isn’t a car, isn’t food. But at the same time, choosing a person takes on a very different feel when you’re handed a catalog with hundreds of detailed profiles of physical features and personality tests and meticulous descriptions of every blood relative.

How could this exhaustive inventory not inflate your sense of control over the genetic lottery and give the illusion of influence? It’s only a sense of control, right? It’s not actual control. Just because you’ve got these detailed profiles doesn’t mean we’ve knocked it out. That really is part of what is being sold.

Zhang: Yeah, I’ve actually spent some time browsing Xytex’s donor catalog when writing about sperm donation. It really is stunning how easy it is to go through by eye color or job or education or hobby. It was like shopping, like the parents on the podcast say.

Fox: I do think that when lawmakers threw up their hands in the ’80s and let the industry set its own rules, this became less medicine than shopping. Sperm-donor banks say really clearly in their marketing materials that they have an extremely rigorous and selective vetting process using the technology of medicine and science. They’re not required to run background checks or ask donors to document their health history. And they’re promising young men in college towns—maybe down on their luck, in need of money—an easy and anonymous way to make serious money.

Zhang: Have the parents you interviewed listened to the podcast, and have they listened specifically to the last episode, when you interview Chris, the donor?

Fox: No.

Zhang: Well, I wanted to ask about that last episode, because a lot of the things you’re talking about come to a head in it. The donor is an abstract throughout the previous seven episodes. All you know about him are his struggles with mental illness and his arrest records, and this was all really dark. When you finally talk to him, you get to know him as a complicated person who has struggled but has also grown. I wonder if the mothers—the fears they expressed about their children inheriting his mental illness—will feel different once they hear from him.

Fox: Me too. I’m dying to know the answer to that question and what the next chapter might bring for them and their kids. These are not just abstract issues of law or ethics. The donor himself is a really good example of that. He was an idea. He was a party to litigation. He was a character in a story, and then getting to know him made him so much more complicated.

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