[DO NOT PUBLISH]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 CRY O 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: 1 of 152 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

Case: 18-11164 Date Filed: 02/04/2019 Page: 2 of 153 artificial in semination 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 don or. 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 Don or #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 crimin al 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. Case: 18-11164 Date Filed: 02/04/2019 Page: 3 of 154 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 un desir able . B efore 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 reason s ; 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 earn ing 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 guil ty to residential burglary

. 2
When Aggeles applied to Xytex to become a sperm donor, he lied o n 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 inseminat ed.

Case: 18-11164 Date Filed: 02/04/2019 Page: 4 of 155 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 b achelor ’s and master’s degree s and was enrolled in a Ph.D. program. He also failed to disclose that he had been hospitalized twice for mental health reasons and bee n prescribed anti

- psychotic medication s. 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 w as true. For example, if Xy tex 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 validi ty 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 a ny of his me ntal health provider s , never asked about his criminal history, never requested any proof of his identification, and

Case: 18-11164 Date Filed: 02/04/2019 Page: 5 of 156 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, t he 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 back ground 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 re sult 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 federa l court alleging thirteen state law claims against Xytex and various affiliated individuals. The d efendants 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). T he di strict c ourt granted the motion on the basis that the claims boil down to a wrongful birth claim, which Georgia law does not recognize. See Atl anta Obstetrics & Gynecology Grp. v. Abelson , 398 S.E.2d 557, 560 (Ga. 1990). The Zelts timely appealed.
II. STANDARD OF REVIEW Case: 18-11164 Date Filed: 02/04/2019 Page: 6 of 157 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, Sa lve 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 law 3 and arising out of Xytex’s misrepresentation s 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 hi s 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 engag e in any choice

- of

- law analysis. I nstead, we assume that Georg ia 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 b ound 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).

Case: 18-11164 Date Filed: 02/04/2019 Page: 7 of 158 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, th e Zelts c ontend , they have been harmed by Xytex’s fraud. But the Zelts face an insurmountable hurdle: under the authority of Georgia ’s highest appellate c ourt, 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 actu ally for wrongful conception (which Georgia law recognizes) or wrongful birth (which Georgia law does not recognize)

. T he Zelts attempt to distinguish th eir claims from wrongful birth claims , but w e conclude that the ir 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, alleg es that, had the medical provider properly performed a ster i lization 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

Case: 18-11164 Date Filed: 02/04/2019 Page: 8 of 159 or pregnancy, . . . pain and suffering, medical complications, costs of delivery, lost wages, and loss of consortium.” I d. 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 alleg es that a medical pro vider 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 h as held that wrongful birth claim s are not actionable under Georgia law

. Id. at 560. In Abelson , t he c ourt noted two main concerns.
O ne was that the medical provider’s actions did not cause the impairment to the child that the parents f ou nd 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 c ourt refused to allow the costs of child

rearing as damages in wrongful concep tion actions : the c ourt 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 adop ted).
Graves and Abelson establish the following guideposts. In a wrongful conception action, the plaintiff never wanted to become pregnant in the first place

. T he harm the plaintiff alleges is the pregnancy itself, so pregnancy

- related damages are allowed, but not damages related to chi ld

- rearing, which is not a

Case: 18-11164 Date Filed: 02/04/2019 Page: 9 of 1510 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.
T he Zelts try to cast their c laims as closer to wrongful pregnancy claim s ; Xytex tries to cast the ir c laims as closer to wrongful birth claim s . The Zel ts ’ complaint le aves ambiguous what exactly they a re 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 undesir able qualities from Aggeles that they wo uld 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 hav e or will develop in the future

.

Case: 18-11164 Date Filed: 02/04/2019 Page: 10 of 1511 Facing the problem of fitting a square peg into a round hole, t he district
court label ed the Zelts’ c omplaint 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 us ed 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 impairment s the children might have or develop as a result of inheriting Aggeles’ genetic make

- up . Assigni ng a numeric value to a person’s existence with impairment s , which the Georgia Supreme Court in Abelson would not countenance, is not the same as assigning a numeric value to the impairment s 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. In herent 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 i s their biological father

. W e are sympathetic to the Zelts’ pain
and fear over what they and their children stand to suffer. But w e would be extend ing Georgia law beyond what state law authorizes were we to recogniz e that

Case: 18-11164 Date Filed: 02/04/2019 Page: 11 of 1512 the Zelts have suffered a legally co mpens able 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 Zel ts 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 calculat ion 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 Abelso n ) 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 pregnanc y - related expenditures and losses under
Graves ), this claim is not “plausible , ” Twombly , 550 U.S. at 570 , because t he Zelts clearly wanted to be come 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 ne gligent failure to diagnose that occurred post

- conception.” Reply Br. at 4. T he Zelts’ argument speaks only to the Abelson c ourt’s concern about causation

— that it was improper to blam e the child’s impairment on the doctor’s failure to diagnose because th e 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, i f the y had known the truth about Donor #9623 before insemination (and conception), t hey would have selected a different donor

— so the cause of their children’s impairment becomes Xytex’s misrepresentations. T his argument fails to address the ir injury , which we have already declined to recognize as a co mpens able legal injury

.

Case: 18-11164 Date Filed: 02/04/2019 Page: 12 of 1513 In sum, o ur 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 the ir children allegedly would not have inherited from a different sperm donor. Monetizing the detrime ntal 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. W e 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 , n egligent misrepresentation , products liability (including strict liability and negligence ) , breach es of express and implied
warrant ies , negligence , unfair business practices , 7 and false advertising , as well as the part of their claim for promissory estoppel that request s 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 con nection between Aggeles’s genes and their children’s present or future mental or physical condition s, 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 A s 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 reas ons.

Case: 18-11164 Date Filed: 02/04/2019 Page: 13 of 1514 Although t hese 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 a n 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’ cl aim for unjust enrichment and their attendant demand for disgorgement of “the payments received from Plaintiffs.” Doc. 8 at 33. Although th e 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 be en 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 op ening 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 ref erences 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)). W e 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.”).

Case: 18-11164 Date Filed: 02/04/2019 Page: 14 of 1515 Reckless , r eprehensible , and repugnant , Xytex and its employees’ alleged conduct undoubtedly caused sever e emotional harm to the Zelts and other families who purchased Donor #9623’s s p erm . But w e must look to and faithfully apply Georgia law. T he Georgia state courts or the S tate ’s legislature may decide to recognize wrongful birth claims or claims like the Zelts’ claims for the wrongful
and fraudulent sale of sperm

. U ntil the S tate ha s 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. Case: 18-11164 Date Filed: 02/04/2019 Page: 15 of 15