Family Law

2 States Pass Laws To Reduce Doctor Creepiness

In case you were thinking about pursuing a new legal specialty, fertility fraud may be the new hot area!

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(Photo by AndreyPopov/Getty Images)

Apparently it used to be a common thing for some doctors — specifically ob/gyns, family doctors, and/or fertility doctors — to use their own sperm to impregnate their patients. This was frequently under the guise of “anonymously donated” sperm. Which, in the doctor’s mind, was a way of satisfying the promise of anonymity — anonymous to the patient, anyway.

Now that DNA testing, like axe-throwing while drinking beer, has become a popular pastime, the truth is coming out. More and more people are discovering that their biological father is just their mom’s fertility doctor. And many “doctor-conceived” persons are unhappy about their newfound genetic history. In several states, they have been taking action. Legal. Action.

The problem, however, as I previously explored, is that the law has been unhelpful for those pursuing claims against medical professionals who engaged in this behavior. The victims have faced legal roadblocks, especially in the form of statutes of limitations.

Well, that has all changed now in two different states: Indiana and Texas.

First in the Nation

Indiana was home to one of the most notorious cases of a bad doctor impregnating his unknowing patients.  Indiana then-doctor Donald Cline (his medical licensed now revoked) is believed to have fathered over 50 children from his “donating” activities. A number of the resulting children actively advocated for a fertility fraud bill. On May 5, 2019, the Indiana governor signed the bill into law.

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The new law does a number of helpful things. First, it makes this type of activity criminal — specifically a felony. Second, it creates a civil cause of action for those wronged by these doctors, including the patient, the patient’s spouse, and the person conceived from the activity. It then takes care of the previously problematic statute of limitation bar, by allowing an additional five years to bring a claim from the date “(1) the person first discovers evidence sufficient to bring an action against the defendant through DNA (deoxyribonucleicacid) analysis; (2) the person first becomes aware of the existence of a recording… that provides evidence sufficient to bring an action against the defendant; or (3) the defendant confesses to the offense.”

A plaintiff who prevails in a claim under the new law is entitled to reasonable attorney fees. (In case you were thinking about pursuing a new legal specialty, fertility fraud may be the new hot area!) In addition to attorney’s fees, plaintiffs may recover the cost of the fertility treatment and (a) compensatory and punitive damages or (b) liquidated damages of $10,000.

The Lone Star State Is In Too

Just last week, on June 4, 2019, Texas Governor Greg Abbott signed Texas’s fertility fraud bill into law. Leading the way in Texas was fertility advocate Eve Wiley. Wiley’s fascinating personal story discovering her own genetic background is destined to be made into a movie. She was born into a traditional family. At 16 — a number of years after the man she knew to be her father had died — she discovered that her parents had used a sperm donor to conceive her. At 18, with her mother’s help, she was able to initiate contact with California Cryobank Donor #106, her parents’ chosen donor. Donor #106’s name was Steven Scholl. Upon meeting, the two felt an instant father-daughter connection, and Scholl even officiated Wiley’s wedding years later.

But when one of Wiley’s sons presented with significant medical challenges, Wiley and her husband decided to undergo genetic testing. Wiley was shocked to learn that Scholl was not, in fact, her biological father. Instead, her mother’s fertility doctor was her biological father.

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[Wiley and Scholl were recently guests on my podcast, I Want To Put A Baby In You. Click here to hear more of their heartbreaking and beautiful story.]

Through tenacious advocacy, Wiley was instrumental in the passing of the new law in Texas. Now, the Texas Penal Code specifies that it is a felony with jail time if a health care service provider uses “human reproductive material from a donor knowing that the other person has not expressly consented to the use of material from that donor.”

Are We On The Right Corrective Course?

Not everyone is in complete agreement with the new laws. Professor Judith Daar, Chair of the American Society for Reproductive Medicine Ethics Committee, and Dr. Sigal Klipstein, a reproductive endocrinologist with InVia Fertility, have significant concerns about the new Texas statutory language.

They explain that while “the sentiment of bodily violation is understandable, the bill is a step too far that actually conflicts with the spirit and letter of the law that supports family formation through the use of sperm donors.” Daar and Klipstein are concerned that linking conception via donor, which is “asexual by design,” “blurs an important line that demarcates natural and assisted conception.” They propose that criminal and civil law offer other avenues for penalty without invoking sexual assault.

It is inevitable that more people will be finding themselves to be doctor-conceived, and will want to take action. The law clearly needs to be updated to account for these types of wrongs. Congratulations to Indiana and Texas for your steps forward, and for providing examples (to adjust as appropriate) for others trying to push their jurisdictions to remedy our out-of-date laws protecting gross breaches of trust.

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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