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A federal judge in California recently ruled that the majority of a couple’s lawsuit against sperm bank Xytex Corp. survives dismissal.

The plaintiffs allege that they were impressed by the rigorous screening procedures Xytex advertised on its website.  When they inquired with Xytex personnel about whether there were candidates with particularly good health and education histories, they were pointed to candidate 9623 as one who was healthy, “ultra intelligent” and attractive.  The couple bought 9623’s sperm and had a child.  Nine years later, they allege, they discovered 9623 was a “mentally ill schizophrenic felon” who had dropped out of college and whose photos Xytex had altered.

Xytex Corp. sought dismissal on various grounds, including that plaintiffs’ allegations as to intent to deceive were insufficient where they had not alleged that Xytex knew of the donor’s history.  The court pointed to the allegation that Xytex personnel had singled out 9623 as healthy and, especially in light of the company’s claims that it rigorously screened the candidates, found the allegations sufficient to withstand dismissal.