The victims of the still-practicing doctor who was discovered to have used his own sperm on his patients just received some big news. After an ongoing legal battle with the Texas Medical Board, it appears the doctor is admitting defeat. Kim McMorries, M.D., sent out an announcement last week that he would be retiring mid-May 2021.
This is the fruition of a battle several years in the making by several very strong and resilient women.
Did The Doctor Realize The Error Of His Ways?
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Probably not, explains Eve Wiley, genetic offspring of McMorries and daughter to one of his victims. Wiley has been a vocal advocate for change, successfully leading the charge for fertility fraud legislation in Texas. Her bill became Texas law in 2019, making it a crime for doctors to use their own sperm (or, however improbably, eggs) to treat their patients’ infertility without their consent. However, the law does not apply retroactively, and therefore did not apply to McMorries’ past actions.
Also in 2019, Professor Jody L. Madeira, an Indiana law professor and expert in fertility fraud, brought a complaint against McMorries before the Texas Medical Board, starting a lengthy litigation process that looks poised to revoke McMorries’ medical license. In the meantime, Wiley has been advocating for another bill — that unanimously sailed through a Texas Senate Committee last week — that would change the relevant statute of limitations applicable to complaints against doctors. The current complaints against McMorries were mired in a dispute as to whether they are barred by a seven-year statute of limitations applicable to a doctor’s standard of care, or whether the complaints as to unethical conduct are outside that statute of limitations. That issue now appears resolved in favor of the complainants.
McMorries can expect a number of additional complaints. In the past few years, Wiley has found another five half-siblings from McMorries “treatments.” That’s in addition to the other four “illegitimate” offspring she already knew, and McMorries’ three “social” children (aka the children he had within his marriage — not through insemination of patients).
Wiley believes that McMorries saw there was no way out for him, but to retire.
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Was Justice Delivered?
Wiley explains that while there is some satisfaction in seeing her family’s perpetrator no longer practicing medicine, it falls short of the delivery of justice. McMorries has never admitted wrongdoing. Nor has he faced criminal or civil charges for the harm he has caused.
Adding to the doctor’s deceptions, Wiley explained that McMorries told Wiley he used his own sperm on five patients at most. But as she learns of more and more half-siblings, his number has been continually revised upward. One of the newly discovered half-sisters was shocked to discover the doctor as her genetic father. Adding to the disturbing discovery was the fact that McMorries had delivered two of her children, and that the doctor’s son, her now-apparent-half-brother, had operated on her on another occasion.
Other Doctor-Donors Still At Large
While McMorries is likely to still lose his license, despite the retirement strategy, there are still a number of perpetrator-doctors who have not faced any consequences for their extra fertility “help.” Like Wiley, Traci Portugal of Washington state, and founder of donordeceived.org — was stunned by DNA test results that she received a few years ago. They showed her family origins to be not of her beloved deceased father and her extended paternal family; instead, the results revealed that her biological father was actually her parents’ California fertility doctor.
Despite California being one of the first states to pass an anti-fertility fraud law, Portugal explains that that law lacks teeth, and has left her with little recourse against the doctor that caused her and her family so much pain and trauma. California’s statute does not provide for a cause of action for the offspring resulting from fertility fraud.
Unable to bring a lawsuit, Portugal filed a complaint with the Medical Board of California against her surprise father, Dr. Gary Vandenberg. She explained how she discovered that Vandenberg used his sperm with her mother 45 years ago without her mother’s consent. She also explained that when she reached out to Vandenberg, he admitted that he “donated a lot back then” but that she had “nothing to worry about” as far as medical history. Leaving out that his sister had, in fact, died of ovarian cancer.
Was the Medical Board of California outraged like the Texas Medical Board? Apparently not. After sending Portugal what essentially looked like a form letter in response to her complaint, the board then proceeded to renew the doctor’s license.
Maybe they need a law professor to complain?
While perhaps not the full justice the victims deserved, hopefully Wiley and fellow victims will sleep a little better knowing that at least one “donor” doctor is no longer practicing. Even if there is much more work to be done.
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].