Lawsuits against a U.S. sperm bank and its local distributor are heading into uncharted Canadian legal territory by alleging that the defendants committed “battery” by misrepresenting a donor, experts say.

Unusual as it seems, the battery allegation may have some basis, according to medical malpractice lawyers who aren’t involved in the case.

“It’s fair to say it would be a novel case in Canada, but it would stand a reasonable likelihood of success given the facts that have been disclosed so far,” said Toronto medical malpractice lawyer Paul Harte.

Three Ontario families claim the Georgia-based sperm provider Xytex Corporation and its distributor in Aurora, Outreach Health Services, described an anonymous donor as a healthy student with a genius-level IQ working towards a PhD in neuroscience engineering. After giving birth, they learned the donor was Chris Aggeles, a convicted felon who has been diagnosed with schizophrenia, bipolar disorder and other types of mental illness, according to court documents. The lawsuits say 36 children were created with Aggeles’ sperm.

The families are suing for a total of $15.4 million in damages and allege fraud, negligent misrepresentation, “wrongful pregnancy” and other charges. None of the allegations have been proven in court and the company denies any wrongdoing.

Harte says the case bears some resemblance to a lawsuit against Dr. Cecil Jacobson, an infertility specialist in Fairfax County, Va., who was found guilty of fraud and perjury in 1992 of impregnating patients with his own sperm without their knowledge. Jacobson, who reportedly called himself “the babymaker” and fathered 70 children, was sued federally eight times and five of those were for malpractice. One civil suit alleged “battery, medical rape.” The Star is unable to confirm the outcome of that case.

Often in malpractice cases, a person can argue battery if doctors omitted critical details before a risky surgical procedure, said Amani Oakley, one of Canada’s leading malpractice lawyers.

“This is an analogous situation which you’re describing, the women saying ‘We consented to the procedure but you left out an important piece of information,’” she said. “It’s possible it will work. It has its place in medical malpractice because consent is vitiated,” or spoiled, “by non-disclosure or deliberately hiding information from a patient.”

The plaintiffs’ lawyer, James Fireman, said he couldn’t talk about the specifics of the case at this time.

Ted Lavender, a lawyer for Xytex, says the allegations are baseless and that the battery charge will be dismissed, as it was when two of the plaintiffs sued the company for the same reasons last year.

“You can Google “battery” and you can see it requires a touching, which never occurred,” he told the Star.

A judge of the Fulton County Superior Court, in Atlanta, dismissed the plaintiffs Angie Collins and Beth Hanson’s previous lawsuit, saying it was more of a “wrongful birth” claim, which isn’t recognized by Georgia law.

Judge Robert McBurney waved off the battery claim. “Battery involves the unauthorized touching of another. There is no allegation that any Defendant ever touched or threatened to touch either Plaintiff in a harmful, insulting or provoking manner,” he wrote.

But John McKiggan, a Halifax lawyer and author of the medical malpractice guide Health Scare, says the women have a case.

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“When you hear the term battery, you typically assume it to mean someone’s hit you,” he said. “But at law, battery is simply any nonconsensual touching.”

“In theory, you could argue that the procedure where they were impregnated was nonconsensual and therefore medically at law a battery,” he said. “Fascinating.”