Family Law

Fertility Doctor Tries To Squirm His Way Out Of Liability

This motion to dismiss contains some pretty ridiculous arguments.

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Home DNA tests have been rising in popularity lately. But with that rise has come tales where individuals are delivered shocking news about their family tree. Kelli Rowlette’s results were no exception. However, when the results indicated that someone she had never met was her father, she told her mom, but didn’t think it was outrageous new information about her genetic history; instead, she just thought the test was bunk. Her mother, on the other hand, recognized the name of the “stranger” who showed up on Rowlette’s test. The mother called her ex-husband, Rowlette’s father, to tell him the news.

The stranger was none other than the couple’s obstetrician in Idaho, who treated them for infertility prior to Rowlette’s birth. The story had begun several decades earlier, when Sally Ashby and Howard Fowler had problems conceiving. To start a family, they sought the assistance of their physician, Dr. Gerald Mortimer. Mortimer informed the couple that he could increase their chances of conception by inseminating Ashby with a mixture of semen — 85 percent from Fowler, and 15 percent from an anonymous donor. The couple agreed to the procedure upon assurances that the donor would be an anonymous college student meeting certain physical characteristics of Fowler. Specifically, they were assured that the donor would have brown hair and blue eyes and would be over 6 feet tall.

After a few months of trying this insemination procedure, Ashby and Fowler were able to conceive a baby girl, who they named Kelli. Mortimer was there for the delivery, because this is Idaho. Now we know that Mortimer was delivering his own daughter, because he did not use an “anonymous” sperm donor at all! Instead, he used his own semen for the procedure.

Because Ashby and Fowler were so horrified by the revelation, they decided not to tell Rowlette that the test was, in fact, accurate. By chance, a few months later, Rowlette was going through papers, and came across her birth certificate. To her surprise, that stranger named on her DNA test, Gerald Mortimer, also appeared as the delivering doctor on her birth certificate! She confronted her parents, and learned the story of Mortimer’s involvement in her conception.

Rowlette and her parents brought suit against Mortimer and his prior medical practice. I wrote about the Mortimer case last spring. In the case’s latest news, on August 30, 2018, the court heard arguments on Mortimer’s motion to dismiss the claims against him.

Not All Anonymous Sperm Is Alike.

Among the ridiculous arguments that Mortimer makes in his motion to dismiss, he claims that because he told Ashby and Fowler that the sperm used would be from an anonymous donor, he was required not to disclose to them the sperm provider’s identity (himself). “It is axiomatic that an individual with an obligation to conceal information cannot fraudulently conceal that same information. Dr. Mortimer was bound to ensure that the donor’s identity remained anonymous, and Dr. Mortimer met that obligation.” You can’t see me, but my eyes are rolling so hard right now.

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Rowlette’s response points out that the anonymity was supposed to be of a bilateral nature. In other words, the donor was also not supposed to know who *they* were. But here, this was not the anonymous donor Mortimer promised, nor were the recipients anonymous to the donor.

Mortimer also argues that the plaintiffs should have “known” that neither Fowler nor the promised donor were Rowlette’s biological parent when she reached adulthood because of her physical characteristics, and therefore the statute of limitations had run. “Plaintiffs’ loss began to accrue when Rowlette reached adulthood and either (1) did not look like Fowler, (2) did not have brown hair, (3) did not have blue eyes and (4) was not over six feet tall. … Any ‘ascertainable loss’ Plaintiffs suffered would be based on the physical characteristics they described and would have manifested themselves by the time Rowlette was an adult.” I guess this is like “The Seed is Strong” argument from Westeros in Game of Thrones, where everyone inherits the King’s hair color. But here in the real world outside of Westeros, that’s not how genetics work. Obviously, it isn’t as though Rowlette’s parents should have noticed that she wasn’t over 6 feet tall, and immediately started questioning whether their trusted OB/GYN had committed fraud by lying to them and using his own sperm for insemination.

Frankly, much of Mortimer’s motion to dismiss reads as less than serious. Maybe he really thought he was doing the family a favor by lying to them and using his own sperm. But that was not his choice to make, and it will be a grave injustice if the law can’t find Mortimer, and other doctors who have gone down this road, responsible for their actions and liable to their victims.

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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