Family Law

Can Doctors Who Secretly Use Their Own Sperm To Impregnate Patients Be Brought To Justice?

Just because the legal calculation is hard to make, doesn’t mean judges should throw up their hands and not try.

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Last week, another woman brought suit against a fertility doctor after finding out that he had gotten involved with his own patients’ efforts to have a child. This time, it was the child conceived through the fertility procedure, together with her parents, who brought the suit. The defendant is an Idaho fertility doctor, who was busted after the plaintiff used an Ancestry.com mail-away DNA-test and learned that her fertility doctor’s genetic profile meant that he was actually her biological father. That had to be quite a shock! Sure, those home DNA tests are fun for finding out your heritage, but they are less fun for finding out that one of your parents isn’t actually genetically related to you. Plaintiff Kelli Rowlette, of Washington state, spoke with her mother once she received the results. Her mother, Sally Ashby, was equally horrified to learn the news.

But Ashby wasn’t horrified by the news her ex-husband wasn’t the genetic father of her daughter; that fact, she already knew. The test revealed a long-kept family secret. Confronted with the DNA results, Ashby explained to her daughter that she and her then-husband — who was Rowlette’s legal and assumed dad–had had problems conceiving. So like many couples, they sought the help of a fertility doctor. Because Rowlette’s legal father was shooting blanks (a technical medical term), Ashby agreed to go through insemination with the use of a sperm donor. The doctor promised Rowlette’s mother that the anonymously provided sperm would be from a college student. Not the doctor’s own sperm. So that part, at least, was a surprise to even Ashby.

This case is outrageous, but it is also turning out to be so common. There was the case of the Belgium doctor, where at least 12 children brought suit after finding out that their parents had been deceived by a Dutch fertility doctor, who was actually their biological father. Or the Indiana doctor who claimed to be using sperm donated by his medical students. But nope, you guessed it. He was using his own sperm. Is there some kind of secret club where fertility doctors conspire to do this?

I can see how convenient it might have been for doctors, particularly where sperm donors are compensated for their … time. So using one’s own sperm is at least cost-efficient. And if technology hadn’t advanced, no one would have been the wiser. But surely, the deception alone should be a scandal.

Wrongful Insemination.

Last month, I wrote on San Diego Law Professor Dov Fox’s push for courts to recognize the tort of reproductive negligence. A doctor’s replacement of promised sperm with his own isn’t exactly “negligence” (because it’s pretty intentional). In his article, Fox said the deliberate nature of this mistake opens it up to a couple other potential claims like breach of fiduciary duty and intentional infliction of emotional distress. But the legal path forward still suffers from the same hurdles that Fox identified in his reproductive negligence cases.

Fox breaks down the three types of reproductive negligence situations: (1) Deprived parenthood (where a would-be parent or parents’ genetic material is destroyed or lost); (2) Imposed parenthood (where a parent or parents didn’t want a child, but an operation like a botched vasectomy means that they conceived anyway); and (3) Confounded parenthood (where parents wanted a child, and had a child, but where the child is other than expected, either because the wrong material was used, or because of genetic conditions).

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The grossly misbehaving fertility doctor cases track closely with the “confounded parenthood” sub-category. But in these scenarios, courts struggle with whether a tort exists at all, much less how to measure “damages” if liability is found. Fox walked me through the three most common obstacles courts struggle with on the confounded parenthood reproductive claims: (1) You wanted a kid, and that’s what you got; (2) You love the child you ended up with, and that benefit outweighs any harm; and (3) You can’t always get what you want, and it’s unreasonable to expect control over offspring DNA.

It’s Not About The Kid.

Fox makes the case that all of these arguments can be answered, “Yes, but…” Yes, I still get to be a parent. But… I signed on for a meaningfully different understanding or experience of that role. Yes, of course I love my child. But… compensating for confounded procreation needn’t suggest that I value her any less. Yes, family planning is rife with uncertainty. But… so is riding a car or preparing a meal, Fox points out in a reply to his critics that’s just out in the latest Columbia Law Review. Enduring risks of car accidents and food contamination don’t keep our laws from responding to those harms, he writes, “when a responsible party — such as a meat producer or drunk driver — is to blame for having caused them.” Just because we’re used to genetic randomness or cosmic injustice doesn’t mean badly behaved doctors should be off the hook.

Pep Talk For Judges.

And just because the calculation is hard to make (how do we value switched-out sperm?!), doesn’t mean judges should throw up their hands and not try. You can do it, Your Honors! You can protect the little guys and girls. In our new world of assisted reproductive technology and Ancestry.com DNA tests, there is a protectable interest in reproductive freedom, and that includes the right to make reproductive selections (one sperm donor over another), and to legitimately rely on the professionals being compensated for their services.

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Ellen TrachmanEllen 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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