Family Law

Fertility Fraud Filings Flourish … And The Facts Get Funkier

We’ve seen a surge in the number of doctors busted for unethical medical practices.

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When the first cases appeared of home DNA kits revealing that a fertility doctor used his own sperm to treat his patients with infertility decades ago, they were shocking and abhorrent. But we also assumed that this was just a few bad apples. We were wrong. Instead, we’ve seen a surge in the number of doctors busted for unethical medical practices.

Peiffer Wolf, one of the leading firms representing plaintiffs in fertility fraud lawsuits, filed two more suits highlighting horrendous and illuminating cases this past week. Both were against doctors who used their own sperm to inseminate patients, instead of using the anonymous donor sperm promised to, and consented to, by the patients. In each of these cases, additional facts add to the already egregious acts.

Medical Rape

In one of the cases, Richards v. Kiken, the plaintiff alleges that she and her husband first turned to Dr. Michael Kiken for help achieving a pregnancy in 1978. They were promised that the doctor would use anonymously donated sperm from a healthy man resembling the spouse. Kiken did not look much like the spouse, and likely would have been rejected by a sperm bank if he had tried to donate, for reasons described below. Nonetheless, he chose, without the patient’s consent, to use his own sperm instead. The complaint introduces this action as “medical rape.”

Had Kiken tried to donate through a sperm bank, he likely would have been screened out as carrier of Tay-Sachs disease, a condition that progressively destroys nerve cells in the brain and spinal cord, and frequently leads to death in early childhood. Kiken passed on this condition to the plaintiff’s daughter as a carrier.

Not knowing any of this, plaintiff and her spouse returned for help having a second child. Kiken said that was not a problem as he had “retained the ‘number’ for the donor they had used to conceive their daughter.” Plaintiff’s son has, unsurprisingly, also been revealed to be genetically related to Kiken. Further, through DNA testing, plaintiff discovered another victim of Kiken, with a child only four months older than plaintiff’s daughter. The child grew up 15 minutes from the plaintiff’s family, and was part of the children’s friendship circles. (Talk about upping the chances of a significant other being a genetic half-sibling!)

The plaintiff sought Kiken’s help when she was residing in California and he was practicing in California. Kiken now practices in Virginia and, to this day, is actively licensed.

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Drug Addict Doctor-Donor

The Kiken case was filed on September 16, 2020, in federal court in the Northern District of California. That same day, Peiffer Wolf also filed suit in state court in San Diego County against Dr. Phillip M. Milgram. In the Milgram case, a newlywed couple sought help to conceive in 1988. Milgram was practicing as an ob/gyn, and informed the then-20-year-old plaintiff that due to her husband’s male-factor infertility, she would need to undergo artificial insemination. Milgram told the plaintiff and her spouse that the donated sperm would cost $150, and that the sperm would be from a colleague of his that was a physician at the University of California, San Francisco.

Yep! You guessed it. Milgram used his own sperm to impregnate the plaintiff. No word on the $150.

When plaintiff and her spouse went through a divorce in the 1990s, plaintiff’s spouse disclaimed paternity of their son, and refused to pay child support, because he was not the child’ biological father. Sounds like a real winner! While litigating over the divorce and child support issues, Plaintiff discovered that Milgram had not obtained the requisite signature from the spouse to establish paternity under the law in 1988. In a bizarre move, after plaintiff’s divorce attorney had tried to reach Milgram, the doctor called plaintiff directly and angrily demanded she tell him what was happening. When plaintiff explained that the attorney was looking for the paternity paperwork her spouse was supposed to have signed, the doctor hung up. Weird.

Plaintiff was awarded sole custody, and the spouse was adjudicated as off the hook for any child support due to the lack of signed consent to paternity.

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But the bad facts don’t stop there. After the plaintiff’s adult son took a DNA test for fun, he learned some very nonfun facts about his surprise doctor-dad. It turns out Milgram had been actively abusing narcotics at the time of his treatment of the plaintiff. The doctor surrendered his California medical license in 1999 after some pretty terrible allegations, including, prescribing Xanax and Prozac to his nurse-girlfriend (an addict who died by suicide shortly thereafter), practicing medicine while intoxicated, and attempting to perform an abortion on a patient who was not, in fact, pregnant.

Failing The 12 Steps

Milgram later had his medical license reinstated in California after confirming that he had worked through all of the 12 steps of an addiction recovery program. The plaintiff’s complaint points out that of the 12 steps, Step 8 requires identifying those the person has hurt, and Step 9 requires making amends. Milgram has in no way acknowledged, accepted responsibility, or attempted any amends for his violation of the plaintiff. Time to go back to Step 8 and 9, Dr. Milgram.

So Many Cases. What’s the Solution?

Peiffer Wolf, the firm representing both plaintiffs and other victims of fertility fraud, has been vocal that the fertility system in the United States needs greater regulation. They have proposed that we look to the United Kingdom for guidance. Professor Jody Madeira, of Indiana University Bloomington Maurer School of Law, is a leading expert on fertility fraud. She does not disagree that the UK’s model of a nationwide regulatory framework, working hand-in-hand with local infertility treatment mandates and donor registries, would be great in the United States.

In the meantime, given the difficulty passing federal legislation in the current American political climate, Madeira has been working with others to pass or strengthen state legislation to better regulate the fertility industry. She is especially focused on state-level legislation in order to provide patients and their adult children victimized by fertility fraud with greater power to file suit or hold these physicians accountable in other ways.

Kuddos to Peiffer Wolf, Madeira, and others on their continued advocacy for fertility fraud victims and fierce efforts to improve the system.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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