Family Law

Surprise! The DNA Test Revealed That Your Mom’s Fertility Doctor Is Your Father

Don’t take the home DNA test unless you want to face some hard truths.

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With the growing popularity of home DNA tests, shocking discoveries are becoming practically common these days. One of those surprises is that a lot of fertility doctors were using their own sperm — and not sperm from anonymous donors or patients’ husbands — to “treat” their patients’ infertility issues. In fact, it’s becoming such a reoccurring story that I’m beginning to feel like anyone who was born in the 1970s or 1980s with the help of an anonymous sperm donor is in for this exact surprise.

In one case in Indiana, Dr. Donald Cline (now stripped of his medical license) has been prosecuted for lying to prosecutors about secretly using his own genetics with patients. Cline repeatedly assured his patients that he would be using sperm from the patient’s husband or an anonymous medical resident who physically resembled the patient’s spouse. He would then, instead, use his own sperm. This wasn’t a one-time thing for Cline. Over 48 donor-conceived persons have been confirmed to be genetically related to Cline.

Despite our innate moral sense that lying to your patients and using your own sperm is wrong, it’s actually very difficult to prosecute as a crime given the passage of time and gaps in state laws. And it’s even difficult to prove civil liability. In the Cline case, the doctor was not prosecuted for the deceptive and disturbing act itself, but for obstructing justice due to initially lying to investigators about his actions. Sometimes it’s the cover-up, and not the crime!

In the wake of the Cline case, a bill has been proposed in Indiana to clarify that this type of activity is, in fact, illegal. Last month, Senate Bill 174 passed the Senate — unanimously. Now, it’s been referred to the Indiana State House of Representatives, with a first stop at the House Judiciary Committee.

“Doctor-Conceived” Persons

I spoke with Professor Jody L. Madeira, of the Maurer School of Law at Indiana University Bloomington, and the author of Taking Baby Steps: How Patients and Fertility Clinics Collaborate in Conception. Professor Madeira has been working closely with stakeholders in the Cline and Cline-esque cases. She introduced me to the shorthand term used for the persons conceived in this manner — instead of the popular term “donor-conceived,” they are “doctor-conceived.”

It’s Pretty Disturbing. But Is It A Crime?

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Professor Madeira explained that more and more individuals are finding themselves in this situation, and hoping to seek legal action. A number of significant obstacles stand in the way of justice for the victims.

Who Exactly Is The Victim? One question is the basic issue of who can be considered a victim. The birth parent, given a false story about the source of the donated sperm, is a slightly easier case. But is the resulting child, likely now an adult, a victim? Does the doctor-conceived person have standing to bring a civil suit? They weren’t technically the one tricked, but their life is surely materially impacted.

SOLs. Statutes of limitations — depending on the jurisdiction — can be another significant impairment to these cases. Given the inability to uncover the doctor’s transgression until the recent availability of home DNA tests, the applicable statute of limitations may have long passed.

Sexual Assault? Does the doctor’s actions (using his own sperm instead of anonymously donated sperm) count as a sexual assault? The mother was told one thing, and then was subjected to something else — being inseminated with the doctor’s own sperm. Does her consent to the procedure generally mean that she consented to the procedure by different terms than what she understood?

Given all these and other impairments, some states are taking action to support the victims, and to send a clear message to the medical practitioners. In addition to Indiana, Texas has a bill working its way through their legislature to clarify the criminal code. It adds the following definition of a person who commits a sexual assault: “a health care services provider who, in the course of performing an assisted reproduction procedure on the other person, uses human reproductive material from a donor knowing that the other person has not expressly consented to the use of material from that donor.” The bill also includes jail time for defendant medical providers.

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The Cases Get Worse

Last week, the news reported another instance where a mother and daughter are suing their doctor, and this case had a particularly upsetting twist. As with the other cases, the doctor had used his own sperm instead of sperm from an anonymous donor. The doctor-conceived daughter was a patient of this doctor as she got older, and he regularly performed gynecological exams on her. He did not disclose to her, or her parents, before such exams that he was, in fact, her biological father.

You’ve been warned! Don’t take the home DNA test unless you want to face some hard truths. And while you are waiting for the results, listen to this week’s episode of the podcast I Want To Put A Baby In You. We interviewed a man who recently found out he was doctor-conceived. You’ll never guess how he feels about his father.

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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