Family Law

The U.S. Is Experiencing An Explosion Of Fertility Fraud Legislation. And That’s A Good Thing.

More and more cases have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.

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Direct-to-consumer DNA kits have changed our reality. The wall of secrecy that was once behind conception and parenting — including adoptions, affairs, and the use of donor eggs, sperm, and embryos — is crumbling. One major facet of this reckoning with the truth has been the stark realization that many, many doctors were using their own sperm to “treat” their unknowing patients.

Sometimes this practice was in place of “anonymous donor” sperm; sometimes, it was actually in place of the spouse or partner’s sperm. It’s pretty gross to think about. But even grosser is the complete lack of accountability for the doctors who must have known of the ethical and moral shortcomings of their actions.

The Justice System Has Been Failing Us

A doctor using his own sperm to impregnate a patient, without her knowledge or consent as to the source of the sperm, must be a crime, right? Or at least a pretty solid tort? For many states, you guessed wrong. More and more cases of those doctors’ egregious practices have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.

Take, for example, the case of Donald Cline, formerly a licensed medical doctor in Indiana. In one of the most notorious cases in the United States, DNA tests have shown Cline to have used his sperm in unknowing patients, resulting in at least sixty children. When the betrayed patients and offspring sought legal remedies against Cline, they were unsuccessful. After all, the patients had consented to Cline inseminating them with sperm. Cline did plead guilty to two charges of obstruction of justice, after lying to officials about using his own sperm with patients. But that, to most victims, was not sufficient.

Time To Change The Law

Since current law has been failing the victims, many have sought, and are currently seeking, to change the law. State by state, if necessary. Last year, two successful bills were passed. One was in Indiana, unsurprisingly, as ground zero of the Cline fiasco. Another was in Texas, where Eve Wiley led the charge. (Listen to this podcast where Wiley and her believed-donor tell the twisting and fascinating tale of uncovering the truth of Wiley’s genetic history.) In Texas, without a civil cause of action due to the state’s recent tort reforms, and without a viable criminal cause of action to charge him, Wiley’s “doctor daddy” is still actively practicing medicine even today. That’s crazytown.

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Now other states are following suit, and closing the legal loopholes that existed for doctors to take advantage of their patients in this most intimate of areas. And while I doubt that as many doctors are so casually using their own sperm these days, there are certainly modern horror stories involving assisted reproduction, including that of a staff member at a Utah clinic swapping out countless sperm samples with his own.

The states currently making progress in this area include my own home state of Colorado with HB20-1014 (Go, Representative Kerry Tipper!), Nebraska with LB 748, Ohio with HB 486, and Florida with SB 698. Other states, as well, appear poised to introduce their own fertility fraud legislation. While the proposed laws vary, they are consistent in their goals of ensuring or clarifying that this type of behavior by trusted medical professionals is not acceptable and not legal, and providing a path forward for justice.

In Texas, Wiley faced criticism for her push for better legislation with comments like, “you should just be grateful that you are related to a doctor.” But those critics are jerks, to say the least. Most of us can agree that regardless of whether we think it is a good thing to be genetically related to a doctor, patients should be entitled to relevant information and to make their own choice when it comes to whose sperm is — or is not — inserted in them. And when that information is not given or a patient’s choice is not respected, there should be legal consequences.

Tip Of The Iceberg

As more people test their DNA and learn surprising truths, it’s possible we have only, to date, seen the tip of the iceberg as to the extent doctors were engaging in this practice. Wiley explains that she and Professor Jody Madeira are being contacted almost weekly about new cases. Unfortunately, one common path they have seen is for victims to settle in private mediation, in exchange for anonymity for the doctor. Wiley notes the frustration with this option, since “This leaves the doctor to continue practicing, with his reputation intact, and to continue offending unbeknownst to his patients. The lack of a clear path to justice leaves most victims feeling they don’t have voice and to suffer in silence.”

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Professor Madeira of Indiana University’s Maurer School of Law is an academic devoting significant thought to the legal complications of these cases and a best path forward. For more on the topic, check out her recent law review article in the Columbia Journal of Gender and Law, Understanding Illicit Insemination and Fertility Fraud, from Patient Experience to Legal Reform, and her article in Fertility and Sterility, Against seminal principles: ethics, hubris, and lessons to learn from illicit insemination.

What To Do?

What if you just found out that you are one of the many victims of this practice? Wiley and Madeira are a great source of assistance for figuring out your options with the current (bleak) legal landscape. Both welcome your polite and respectful contact, understanding that they still have jobs and personal lives to attend to. Wiley explains that she aims to help others feel as informed and empowered as possible under the circumstances. She points victims to support groups specifically for the “donor deceived,” suggests legal resources, and, acts as a sounding board as they work through incredibly complex feelings. And, of course, if they are interested, she discusses legislative efforts. After all, what better way to deal with the holes in the legal system than to fix them. It might not bring justice to the victims, but at least they are playing an important role in protecting others and preventing anyone else in their state from finding themselves in this devastating position.

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 [email protected].

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