Family Law

Would Thomas Jefferson Have Supported Sperm-Swapping Doctors?

Like a gruesome car crash, it’s hard to look away.

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Last month, I wrote about the case of Dr. Kim McMorries, a somehow-still-practicing Texas physician who repeatedly used his own sperm with his fertility patients without their consent. Decades later, the truth came out, thanks to consumer DNA testing kits. The DNA kits, which have become popular Christmas presents, delivered the unpleasant surprise news to many of McMorries’ patients and their now-adult children.

McMorries is now embroiled in a legal battle with the Texas Medical Board, and, like a gruesome car crash, it’s hard to look away.

Last time I discussed this case, I mentioned that McMorries had decided that there was no better defense than a good offense, and went ahead and himself sued the Texas Medical Board, arguing that the Board was prevented by a state statute of limitations from bringing an action against him. The statute in question provides that the Texas Medical Board may not “consider or act on a complaint involving care provided more than seven years ago.” However, the Board asserts that, per its guidelines, complaints based on the standard of care used by a doctor are, indeed, prohibited seven years after such care was given; however, many other violations — presumably more closely related to fraudulently impregnating patients with your own sperm — are not subject to the statute of limitations. McMorries’ response brief used many Venn diagrams to explain the varying interpretations of this statute.

Despite the multitudinous Venn diagrams, the court was unpersuaded, and dismissed McMorries action against the Texas Medical Board.

Creative Briefing

Now, we are back to the Texas Medical Board’s case against the disgraced doctor, who apparently still has patients willing to take their chances. After no agreement to settle was reached through Informal Settlement Conferences (ISC), on March 24, 2021, the board filed a complaint with the State Office of Administrative Hearings. The complaint alleges “unprofessional or dishonorable conduct that is likely to deceive or defraud the public or injure the public.”

McMorries and his counsel responded earlier this month with 83 pages of … creative lawyering. The arguments and techniques used in the reply brief are those not always seen in your standard brief — or necessarily encouraged in 1L legal writing classes. But I guess what else do you do to defend the doctor that inserted his own semen into his patients without their knowledge? You apparently quote the Texas State Constitution, Abraham Lincoln, and extensively from writings of Thomas Jefferson. And, of course, use a plethora of Venn diagrams. Again.

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Apparently, Thomas Jefferson Hated the Press

For background, it is true that the Texas Medical Board initially decided to dismiss a 2020 complaint against McMorries based on the statute of limitations, but then reversed course. McMorries uses much of his reply brief to allege that the board did this only because it folded to media pressure. McMorries makes much of this, and tries to paint this picture: “Imagine Lady Justice with her blindfold askance and her eye trained, not on her scales, but on the cameras. This is the Board.”

By page three of the brief, McMorries is quoting extensively from Thomas Jefferson, who apparently had some anti-newspaper quotes that I had not seen before. “I deplore with you the putrid state into which our newspapers have passed, and the malignity, the vulgarity, & mendacious spirit of those who write for them.” Who knew that Jefferson was an early adopter of the Fake News criticism?

OK, founder.

In any event, McMorries cannot use the excuse of the lamestream media to get out of this one. And quoting Jefferson — who himself engaged in some grossly troubling insemination practices — does not help McMorries escape the consequences of his actions.

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This “Aspect” Of His Practice

Essentially, McMorries presents two defenses to his past actions. One is this claim: “The fact remains that ‘anonymous donor,’ as that term was used in the 1980’s, could and did include the doctor himself. Not just in his practice, but throughout the field.” Fertility fraud expert and McMorries complainant Professor Jody L. Madeira disagrees. “The assertion that ‘anonymous’ ever included the doctor himself is blatantly false. Anonymity applied to both the donor and the recipient. Moreover, all reproductive medicine physicians who have weighed in on this topic agree … for a doctor to use his own sperm violated the standard of care, broke tenets of informed consent, and violated medical ethics.”

Second, the brief notes that “[McMorries], though, had closed this aspect of his practice in the 1980’s.” While I think this is meant to suggest that it’s been a long time since the last time that McMorries inseminated a patient with his own sperm, this argument reads like committing terrible acts was indeed an “aspect of his practice,” which went on repeatedly until potentially 1989.  So there may be a lot of kids out there who don’t even know that they’re related to McMorries.

The Law Is Changing

Prior to DNA tests revealing the truth of certain doctors using their own sperm on patients, there were no specific laws addressing doctors using their own sperm. Because, why would we have to actually say not to do that? But now we know better. California was first to pass an anti-fertility fraud law covering these circumstances. In the past few years, Indiana, Texas, Florida, Colorado, and Arizona have followed suit. Similar bills are working their way through state legislatures in Iowa, New York, Oregon, Pennsylvania, and Washington. And the Texas legislature is considering a bill to clarify the statute of limitations applicable to complaints against Texas doctors.

Hopefully this practice is one that will never return. And that justice will be delivered for these doctors’ victims — especially including McMorries’ victims.

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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