Family Law

Netflix’s 'Our Father' Is A Horror Story Of Legal Failure

This fact pattern should be on a law school final exam, because surely even students can do better!

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Sperm and egg cell microscopic view. 3D renderingThere are some stories that are so strange that there is no need for artistic embellishment. Netflix has opted to shed light on one of those, involving a major scandal that was uncovered recently.

The United States, and the rest of the world, have watched in horror over the past decade as for-fun DNA kits have continued to reveal a terrible truth. Incredibly, a significant number of doctors, mainly in the 1970s and 1980s, used their own sperm to inseminate infertility patients instead of using the sperm of a promised “anonymous donor,” or the patient’s own husband.

An Indiana doctor named Donald Cline, now stripped of his medical license, is among the worst kind of record-setters. He has over a hundred offspring conceived through his illicit insemination of patients.

Last week, Netflix released a documentary on Cline called “Our Father.” It is so good. In the worst way. I felt all the emotions — disgust, nausea, sadness. And a whole lot of anger. Spoilers ahead.

Stranger Than Fiction

The documentary digs deep into the experience of Cline’s victim-patients and their children, continually one-upping itself in horribleness. First, the audience learns of adults who discover their biological father is their mothers’ trusted doctor, Cline, despite their mothers being assured that he would use sperm from a medical student as an anonymous donor.

Then we learn of patients told at all times that their husbands’ sperm would be used for the insemination. But no, Cline substitutes his own. (One donor-conceived person muses in the film what we are all thinking, “What did he do with my father’s sperm?!”) And then it gets worse still. We learn of a victim who was illicitly inseminated by Cline, a daughter is born, grows up, and has fertility issues of her own. The now-adult goes for medical treatment to — who else — Cline. That treatment includes gynecological exams and all … from her biological father.

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That’s a lot of horror for your regular viewer. The attorney-viewer, however, or those with an interest in the legal pieces of the case, will experience an extra level of shock and disgust at the failure of the law. Despite this doctor deceiving hundreds of patients in a really gross and traumatizing way that will affect generations to come, the legal consequences have been practically nil. Cline pleaded guilty to two counts of obstruction of justice — for lying about his illicit inseminations (not for the actual illicit inseminations themselves!) — resulting in a $500 fine and no jail time. Seriously.

Law students, spot the issues! Why wasn’t Cline subject to both criminal and civil legal consequences?

So Many Gaps In Our Legal System

Professor Jody Madeira of the Maurer School of Law, Indiana University Bloomington, has put a lot of thought into the legal questions raised by Cline and other “doctor-donors.” She is featured in “Our Father,” and the author of the Columbia Journal of Gender and Law article “Understanding Illicit Insemination and Fertility Fraud from Patient Experience to Legal Reform.” Although not agreeing with the results, Madeira explains why Cline and other similar-acting doctors have gone so long without real consequences for their actions.

Criminal Failures

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It feels obvious that Cline should be guilty of some serious crimes: fraud, battery, even rape. Madeira agrees but explains the complexities of what prosecutors were facing. Take criminal battery, as an example. Surely this was an unwanted touching, constituting criminal battery? In Indiana, criminal battery applies to a person who “knowingly and intentionally (1) touches another person in a rude, insolent, or angry manner; or (2) in a rude, insolent, or angry manner places any bodily fluid or waste on another person.” But, Madeira explains, there is no evidence that Cline inseminated his patients in a “rude, insolent, or angry manner,” and placing fluids “on” a person is not the same as putting them in a person. Moreover, as Cline could argue, patients wanted sperm to be placed inside them. However, Madeira points out, that consent should only be valid in so far as the physician was using sperm from the agreed-upon source.

The lack of fit between the Cline situation and the technical language of the Indiana statute was enough for prosecutors to forgo charges. The same was the case with other potential claims, including fraud and rape. It was only the deeply unsatisfactory “obstruction of justice” charges that prosecutors felt comfortable with moving forward on.

OK, What About Civil Causes of Action? 

Surely, if the criminal system fails the victims, our nation’s civil system of torts should offer them some solace. Madeira explains that “civil claims against Cline could include a handful of intentional torts, such as battery and intentional infliction of emotional distress, as well as fraud and misrepresentation.” Those, too, however, would be subject to defenses from the doctor that the patient had agreed to the procedure, and that his intention — for purposes of such causes as intentional inflection of emotional distress — may fail to meet the tortious requirements. These defenses seemed to have long chilled progress on the civil front for fertility fraud victims.

So frustrating! Is there any hope?

Yes!

Recent Patient Victories

Despite the shocking nature of illicit inseminations coming to light over the past decade, it is only in the past few months(!) that there has been some real movement in the U.S. on the accountability front. In a first-of-its-kind jury award on March 30, 2022, a Vermont jury awarded fertility fraud victims $5.25 million: $250,000 in compensatory damages, $5 million in punitive damages. Not to be outdone, and proving the Vermont case not to be an outlier, two weeks later, a Colorado jury awarded plaintiffs $8.75 million on their claims against a Colorado doctor who had used his own sperm on unknowing patients.

Fertility Fraud Legislation

In the meantime, having experienced the severe gaps and frustrations in the law, victims and advocates such as Eve Wiley (check out this podcast recounting her especially twisty story) and Madeira have successfully passed fertility fraud legislation in a number of states, including Indiana, Texas, and, most recently, Kentucky. The new laws are effective in making it crystal clear that this type of behavior from medical professionals will face legal consequences.

But, of course, the new legislation is not retroactive. As more victims learn the news through 23andMe and AncestryDNA, a whole generation of attorneys will continue to struggle to fit Cline-type fact patterns with ill-fitting outdated laws. This isn’t just a bar exam question. This is your assignment. Watch “Our Father.” And let’s see if we can do better for the victims of fertility fraud.

Ellen TrachmanEllen 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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