Like many couples, Donna and Vanner Johnson turned to assisted reproductive medicine when they were unable to conceive on their own. After researching their options, they chose a reputable local fertility clinic. Little did they know that a mix-up at the clinic would upend their lives, as well as the lives of another family, over a decade later.
‘Father Unknown’
As with so many stories in this area, this one starts with a “fun” at-home DNA test. Vanner Johnson was confused and, at first, assumed it was a mistake when he received results indicating that he was only related to one of his children instead of both. But it wasn’t a mistake. Donna Johnson received her results showing that her two sons were half-brothers to each other. The couple’s younger son’s results indicated “father unknown.”
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The Johnsons took some time for processing and professional advice before telling their son the news. Vanner describes, in this podcast interview, his son’s reaction: “You are still my father. I love you,” and “I wonder what I would look like if we were genetically related?”
After conversations with their son, and their son expressing that he would like to know the man he is genetically related to, they turned to a different home DNA-testing company to search further. That test gave enough information to point them directly to the genetic father: Devin McNeil, husband and father of three (or, at least, so he thought at the time), living a state away. The Johnsons learned that the McNeils had gone through IVF at the same fertility clinic during the same period. How the clinic made the mistake of using Devin McNeil’s sperm instead of Vanner Johnson’s sperm with Donna Johnson’s eggs is, to this day, inexplicable.
Devin and Kelly McNeil describe first getting that call from Vanner Johnson. Both were wary, thinking it must be some kind of scam. But when the Johnsons shared screen shots of their son’s DNA test, showing family member after family member who Devin McNeil immediately recognized as his own relatives, it was hard to deny that they were telling the truth.
Since that initially painful discovery, the Johnsons and the McNeils have been navigating the new and unexpected reality about their families. Both couples have focused on putting their children first, being open and honest, keeping in contact, and providing opportunities to get together to support an organic relationship between the now genetically interconnected families.
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Legal Action
Both couples are also in the midst of legal action against the clinic that caused this situation. Vanner Johnson explains that they love their son unconditionally and do not wish anything different about him. But, Johnson says, fertility clinics must be held to a higher standard. His goal is for the legal damages recognized by the fertility clinic to be high enough to send a message: fertility clinics must take seriously the depth of their responsibility to their patients.
Courts have historically struggled with these types of cases. When a healthy child is born, but not the child that the parents had intended in some way, what are the damages? Do public policy interests preclude damages that could be considered to value one human life differently than another because of genetics?
In 2017, the Supreme Court of Singapore ruled in favor of a couple in a very similar situation as the Johnsons. There, too, a man’s sperm was switched with another, unrelated patient’s sperm, and used to fertilize the man’s wife’s eggs. The fertility procedures resulted in a son, and the couple soon uncovered the genetic disconnect. The Singapore Supreme Court found damages for lack of “genetic affinity,” and required the clinic to pay the parents 30 percent of the cost to raise the child.
For the past few years, University of San Diego law professor and reproductive law scholar Dov Fox has been arguing for the tort of reproductive negligence, urging courts not to dismiss plaintiffs’ cases merely because a court fears that entering a damages award against a wrongdoer could be considered to devalue a child at issue. Another assisted reproductive law scholar, Jody Madeira, a professor at Indiana University Bloomington’s Maurer School of Law, explained. “Courts too often allow clinics and other parties to use the birth of a child to shield them from liability, when they negligently performed their role in that child’s conception. It is time to separate a child’s birth from the series of events that enabled that birth. The child is innocent — not so those that helped him into the world.”
Regardless of the name and exact contours of the cause of action and accompanying damages, we can likely all agree that mix-ups of this sort have serious consequences. The courts should not be shy with fashioning appropriate remedies that ask clinics to do better, and to provide what little comfort they can to the affected families.
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].