Family Law

Reproductive Battery: A New Crime For A New World

Florida’s new law became effective July 1, 2020. It creates the crime of a reproductive battery, a third-degree felony, punishable by up to five years in prison.

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(Photo by David Lat)

Home DNA tests have made fun gifts and brought to light some shocking truths. These often involve learning that a loved parent is unexpectedly not one’s biological parent. And, all too often, also learning that your mom’s fertility doctor is actually your biological father! Given the somewhat shocking number of discoveries along these lines, it has become clear that this was not an isolated practice by one or two doctors, but instead practically routine for some fertility doctors.

The shocking news doesn’t end there. The patients — who never agreed to a fertility procedure with the doctor’s own sperm — and their resulting children, have been surprised to find either limited or absolutely no legal recourse against the doctor. Many have tried, and, while a recent case provides a glimmer of hope, most claims through the courts have been dismissed.

The largest hurdle is the statute of limitations, which is inevitably long past by the time a holiday sale on 23andMe reveals the truth. Other obstacles include the fuzzy legal lines of what, specifically, the patient consented to. Does consenting to “anonymous donated sperm” mean that the “anonymous” part applied only to the patient (and not the donor-doctor); does a broad medical waiver or consent form include the doctor’s own sperm? Moreover, does a resulting child have standing against the doctor?

Since justice for victims has not come via the judicial system, legislatures have provided the next best hope. California, Indiana, and Texas have successfully passed legislation clarifying that this type of behavior by a medical professional is not okay and necessitates criminal and civil consequences. Two more states just successfully joined the world of updated laws for updated technology. Welcome, Florida, and my own state of Colorado.

Despite a pandemic grinding legislative wheels to a halt across the world, Florida and Colorado managed to successfully squeak out smart fertility fraud legislation in their 2020 sessions.

Florida’s New Crime: Reproductive Battery

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Florida’s new law became effective July 1, 2020. It creates the crime of a reproductive battery, a third-degree felony, punishable by up to five years in prison, for any healthcare practitioner who intentionally transfers human reproductive material to the body of a recipient, knowing that the recipient has not consented to the use of the reproductive material or embryo from that donor. Further, if the healthcare practitioner is the donor of the reproductive material, the penalty increases to a second-degree felony, which means up to 15 years in prison. Importantly, the statute of limitations for reproductive battery does not begin to run until the date that the violation is discovered and reported to law enforcement. And, it is not a defense to the crime that the recipient consented to the use of an anonymous donor.

Colorado: Misuse Of Human Reproductive Material

Colorado’s legislature passed its fertility fraud bill, HB20-1014, on the very last day of the session with unanimous support. Governor Jared Polis signed the bill into law July 6, 2020.

The bill specifies that it is a class 6 felony for a healthcare provider in the course of assisted reproduction to use gametes or embryos with a patient without specific consent to that reproductive material. A class 6 felony in Colorado is punishable by one year to eighteen months in prison. It also creates a civil cause of action with specified compensatory damages, or liquidated damages of $50,000. The bill provides standing for not only the patient and patient’s spouse, but also for any child conceived as a result of the misuse of human reproductive material. Further, the bill specifies that conviction under the law would amount to unprofessional conduct under state licensing laws, which means the doctor would generally have to give up the right to practice medicine (a number of known doctor-donors currently continue to practice medicine).

I had a chance to connect with Maia Emmons-Boring, a victim of fertility fraud committed by a Colorado doctor, and one of the driving forces behind the Colorado bill. Emmons-Boring explained how her Colorado attorney (she currently has a case pending against her Colorado doctor-donor) set up a meeting for her with Colorado State Representative Kerry Tipper. She was nervous going into the meeting, never having spoken face-to-face with a state representative before, but was immediately put at ease by Tipper. She told her story — one of Emmons-Boring’s mother and father seeking fertility treatment, and trusting their doctor and his promise of an “anonymous donor.” Only decades later did they learn of the doctor’s breach of trust by using his own sperm. And then they learned that the law in Colorado did not clearly make these actions a crime or even clearly subject to civil action. Tipper promised to sponsor a bill to fix the egregious legal hole.

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Emmons-Boring and her mother have been living in Texas since 2009 and, at their own expense, repeatedly traveled to Denver for the legislative hearings to tell their very personal stories. Emmons-Boring had been prepared to start over again in 2021, bearing the expense and emotional anguish as long as necessary. She was overjoyed to learn of the passing of the bill on the last day possible. She explained that the passing of this bill meant the world to her and her half-siblings, who were other victims of the same Colorado doctor.

One might think that this is a problem that will go away on its own, now that people can use of home DNA tests, and no self-interested medical provider would engage in this conduct. So what is the point of the legislation now?

Eve Wiley, a prime mover behind the Texas fertility fraud bill, has explained that these pieces of legislation are important for four reasons.

  1. They act as a deterrent for bad acting doctors in protecting those struggling with infertility.
  2. They serve as part of an educational campaign to highlight how grossly unregulated some parts of the fertility industry are.
  3. These bills offer some sort of measurable accountability in a legal landscape that otherwise leaves the victims feeling helpless.
  4. It opens the floor for conversation to the other marginalized voices within the fertility industry. For example, the donor conceived offspring, a lack of a national donor registry, and the lack of cap on live birth per donor. (Check out this podcast interview with Wiley and her donor-not-donor dad.)

These are, indeed, important discussions needing a great deal of further discussion — and action — in our country. In the meantime, good work, Florida and Colorado.

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 babies@abovethelaw.com.

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