Prominent Fertility Doctors Accused Of Using Their Own Sperm On Patients
One of the two did so more recently than you'd probably think.
When doctors take the Hippocratic Oath, they promise to treat their patients faithfully, while doing no harm. But apparently that oath isn’t specific enough because, at one point, a lot of fertility doctors didn’t think that it covered *not* using their own sperm to inseminate a patient. Indeed, the number of doctors found to have used their own sperm to secretly inseminate their patients — instead of using sperm from, like, the patients’ spouse, partner, or a promised anonymous sperm donor — has been outright shocking. Over 80 doctors have been accused or concretely shown to have been illicit “doctor donors.” After years of having popular home DNA tests readily available, you might think we were about done with these discoveries. But you would be wrong.
In the past month, new complaints have been filed against several more doctors. But the prominence of two of those doctors makes these new accusations especially shocking.
Founder Of Boston IVF And Harvard Professor
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Dr. Merle Berger, now retired, co-founded one of the largest fertility clinics in the world, Boston IVF, and was even a professor at Harvard Medical School. Pretty impressive. So when Sarah Depoian was facing fertility challenges in the early 1980s, she was referred to the very prominent Berger.
Alas, according to a complaint filed by Depoian on December 6, 2023, in U.S. District Court for the District of Massachusetts, Berger did not, as promised, inseminate her with the donated sperm of a medical resident who resembled her husband, who Berger promised “did not know her, and whom she did not know.” Instead, as demonstrated by the DNA results of her 41-year-old daughter this year, Berger used his own sperm. For this to happen, Berger “needed to masturbate in his medical office, walk over to his patient [Depoian] while carrying his own sperm, and then deliberately insert the sperm into his patient’s body — all while knowing that she did not consent to his sperm entering her body.”
Depoian’s suit brings claims of fraudulent concealment, intentional misrepresentation, fraud, and a separate violation of Massachusetts’s consumer protections law. She also requests a jury trial. So if the jury awards in Vermont and Colorado against doctors performing similar devious feats are any indication, Berger can expect to be on the hook for millions in punitive damages.
Adding to the fertility fraud shock, yet another allegation came to light against a once well-known and well-respected fertility doctor.
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Fertility Advocate Of The Year
Before agreeing to surrender his medical license, Dr. Christopher Herndon was a physician with the University of Washington Medical System. Herndon was a major player in the community, and, in 2021, he was awarded the prestigious Legacy Advocacy award by RESOLVE: The National Infertility Association (RESOLVE). (I, along with hundreds of other Americans every year, have dedicated countless hours to advocate for better fertility care access through RESOLVE’s Advocacy Day.) Because of his work and prominence in this area, Herndon’s awardee status adds to the sting and horror.
In Herndon’s case, a patient had requested the same sperm donor that she had used for her first child for the conception of her second child. But the patient later learned through DNA testing that her two children actually did not have the same paternal DNA. Instead, DNA testing showed that her second child was genetically related to Herndon himself. And here’s the kicker: the insemination wasn’t back in the 1980s when home DNA testing was unfathomable. No. It happened in 2009!
This information came to light in the publicly issued “Stipulation to Informal Disposition” by the State of Washington Department of Health. Per the informal disposition, the commission and Herndon stipulated to the following terms: “Voluntary Surrender. Respondent agrees to voluntarily surrender his license and agrees not to resume the practice of medicine in the state of Washington. … Respondent acknowledges that he is ineligible to renew, reactivate, or to practice subject to a retired active license as physician in the state of Washington.” Unlike Berger, who was already retired, Herndon was born in 1979, and was likely not already planning for his retirement.
Better Law Needed
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Fertility fraud victim and advocate Eve Wiley and legal expert Professor Jody Madeira have been on the front lines fighting for better legislation to address the legal gray area of doctor “donations.” Madeira reiterated the significance of the timing: “the Herndon case proves that these incidents aren’t confined to the 1970s and 1980s but continued decades after standards of care mandated using frozen sperm to protect patients.” Changing practice standards affect the conduct of ethical doctors, but they don’t stop predators, she explained.
Both the Herndon and Berger cases demonstrate that the physicians who conducted illicit inseminations were some of the most respected and trusted practitioners of reproductive medicine in the United States, affiliated with elite universities, and also Harvard. Madeira described how “these doctors not only defrauded patients and colleagues; they betrayed their profession, institutions, medical associations, and other organizations that spend precious resources to combat infertility and advocate for patients. Such duplicity runs deep, and scars the trust that patients place in their fertility care teams. In the wake of these deceptions, it is even more urgent to pass state and federal legislation ensuring that perpetrator physicians can be held accountable under the law.”
Wiley has supported the successful passing of fertility fraud legislation in over 10 states but has also faced significant opposition. “For years, victims of fertility fraud have been told that legislation is not important ‘because it isn’t happening anymore.’” This is a message that has marginalized and gaslit victims. “Not only has it happened recently, but the perpetrator was someone who infiltrated large stakeholders, and was a part of their legislation task force. And FYI, I am available for any vacant or future advocacy awards.”
Fierce! As a call to action, Wiley also encourages all stakeholders, clinics, doctors, and organizations that have any affiliation with fertility to support legislation in the form of HR 451, which Wiley describes as victim-led and narrowly tailored to address the problem of federal fertility fraud.
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.
