A Connecticut Court Just Dismissed A Case Against A Doctor Who Secretly Inseminated His Patients With His Own Sperm

The plaintiffs brought claims of negligence, fraudulent concealment, lack of informed consent, and unfair trade practices. Yet the court sided with the defendant doctor’s defenses.

sperm egg IVF in vitro fertilizationA recent judgment from Connecticut’s Judicial District of Hartford was disappointing, to put it mildly, for those interested in accountability in the reproductive field.  Specifically, on February 17, 2023, a judge dismissed claims by the offspring of a Connecticut doctor’s patients who discovered that the doctor had surreptitiously used his own sperm to impregnate their mothers. The plaintiffs discovered the misconduct through home DNA testing. They were not only half-siblings, but both had the same genetic father: their mothers’ doctor.

The plaintiffs brought claims of negligence, fraudulent concealment, lack of informed consent, and unfair trade practices. Yet the court sided with the defendant doctor’s defenses. The defendant argued that he owed no duty to the plaintiffs, who were never his patients, and alternatively, that the plaintiffs’ claims amounted to “wrongful life” arguments. The court, confusingly, found that “the plaintiffs’ claims are properly characterized as claims for ‘wrongful life,’ but the facts alleged fail to satisfy the requirements of that cause of action, were it recognized in Connecticut.”

So, to break it down, the court: 1) declined to answer whether Connecticut does or does not recognize “wrongful life” as a permissible claim in the state; 2) decided that all of plaintiffs’ claims fell within the “wrongful life” bucket; and 3) determined that the plaintiffs failed to meet one of the elements of a “wrongful life” claim (which was not a claim alleged by the plaintiffs).

The judge wrote that the plaintiffs didn’t show enough “impairments and associated extraordinary expenses suffered because of the defendant’s alleged tortious conduct” to meet the requirements of a wrongful life claim. In other words, the plaintiffs didn’t suffer sufficient damages from the actions of their genetic father. This finding was despite descriptions by the plaintiffs of suffering physical harm and emotional anguish, as well as one plaintiff suffering from genetically connected conditions, caused by the doctor’s actions, that diminished her earning capacity.

But if that’s true, then who can hold doctors accountable for the most serious breach of trust imaginable?

I turned to Indiana University Bloomington, Maurer School of Law professor and national fertility fraud expert Jody Madeira for a breakdown of why this ruling was so disappointing. Madeira expressed in no uncertain terms that she believed the ruling to be highly erroneous. “Courts in many other fertility fraud cases involving doctor-deceptive conception have correctly rejected the wrongful life theory smokescreen that deceptive doctors have used to try to evade liability.” More broadly, Madeira considers it is legally dubious to classify fertility fraud claims under the “wrongful life” umbrella. “These children were very much wanted by their parents, and their argument is not that nonexistence would be preferable to existence. Nor were they born with the types of birth defects or genetic conditions immediately apparent after birth that usually give rise to [wrongful life] claims, such as spina bifida or severe, life-altering complications from undiagnosed conditions such as German measles. Instead, courts should focus on the doctor’s fraudulent acts.” In short, doctors shouldn’t be immune from liability merely because the children turned out OK, despite their grievous misconduct.

Two Steps Forward, And Then This?

Sponsored

The ruling hearkens back to decisions from several years ago, where courts struggled with how to address claims of this nature. But recently, legislators and courts have recognizing the need — and the right — for victims of fertility fraud to have a path to justice.

The Netflix documentary “Our Father” followed the case of an Indiana doctor who secretly fathered close to 100 of his patients’ children. One of the most disturbing parts of the true story was the lack of justice. Prosecutors did, ultimately, bring charges against the doctor, Donald Cline. But the charges were not for the lies to his patients, or for his duplicitous and grotesque acts, or the resulting trauma to their families. No. The charges were two counts of obstructing justice for lying to investigators about his actions.

Fortunately, we have seen positive steps forward since then with 11 states passing laws aimed at creating a clear path to justice for victims when medical providers misuse human gametes. Further, we have seen courts recognize the outrageous nature of these violations and hand down significant awards to victims. These include:

  • In 2021, the Ontario Superior Court (in Canada, not California) certified a $13.375 million settlement for the 226 class members who were victims of a doctor discovered to have a regular practice of surreptitiously using his own sperm to impregnate patients.
  • Last year, a Vermont jury awarded $5.25 million — $250,000 in compensatory damages, $5 million in punitive damages — to the victim of a doctor who used his own sperm on a patient instead of the promised donor sperm.
  • The Vermont judgment was quickly followed by an $8.75 million judgment in Colorado against a local doctor and medical practice after finding that the doctor had been using his own sperm to secretly impregnate patients.

A Federal Fix

Sponsored

In January 2023, a federal bill was introduced to clarify that it is a crime for a medical professional to knowingly misrepresent the nature or source of DNA used in any procedure that involves assisted reproductive technology. Eve Wiley, fertility fraud victim and advocate, explained that rulings like this one out of Connecticut demonstrate why congressional action on the Protecting Families From Fertility Fraud Act is needed more than ever. It is distressing to see victims of fertility fraud, such as these plaintiffs, denied justice.

Let’s hope that an appeal is underway, and that, given the chance, Connecticut can do better.


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.