Family Law

The Deceived Strike Back

The few cases that have moved forward against 'doctor-donors' have regularly dismissed the children conceived from the donation on the basis that they lack standing and are not considered an injured party.

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The story is an all too familiar one in the area of assisted reproduction. You got a home DNA kit as a gift or buy one yourself, curious about your ancestry. What a fun thing to do! Not. So. Fast.

Once you receive the results of the genetic test, you’re in shock to learn that your parents might not have been who you always thought they were.

A Horrific And All Too Familiar Story

Traci Portugal is among the many to experience this unwelcome surprise. Hers occurred in the fall of 2019, after taking a 23andMe genetic test. A mom in her mid-40s living in the state of Washington, Portugal was curious about her genetic medical history, given that both her father and paternal grandparents had passed. Her results, however, showed genetic relatives she didn’t recognize and genetic conditions she had no knowledge of. And, ultimately, the results led her to discover that her mother’s fertility doctor out of San Diego, California — not the man that she had called “Dad” her whole life — was her genetic father.

Her mother revealed to her how she and her father had sought fertility treatment before her conception, and were told that the use of donor sperm, sourced from a pre-med student, would “help” her father’s sperm along. But the doctor told her parents never to tell anyone about the treatment, which is like, the most suspicious thing you can say to a patient and an absolute red flag. But this was  the 1970s, when the world was simpler.

As Portugal sought out more information, she reached out to the doctor, still practicing at the time, directly. He was cruel in response: he refused to provide her familial medical information; he asked what she had accomplished in life while sharing no substantive information in return, and then he abruptly cut off all communication.

On the legal front, Portugal talked to various lawyers about exposing the doctor for his unethical actions. Unfortunately, the few cases that have moved forward against “doctor-donors” have regularly dismissed the children conceived from the donation on the basis that they lack standing and are not considered an injured party. Tell that to Portugal, who like many doctor-donor offspring, deals with constant anxiety and depression from the trauma of her discovery.

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Driven

The one thing the doctor did share with Portugal was that all of his “children were driven individuals.” That characterization certainly applies to Portugal. After experiencing trauma due to the circumstances of her conception, and learning of so many others in similar situations, Portugal became driven to expose what this doctor and other doctors like him have done, and to advocate for legislative change and support for those harmed by their actions.

Cataloging The Law

Portugal founded the website DonorDeceived.org, where she carefully catalogues and tracks the legal cases dealing with fraud and donor conception. While initially focused on cases in the U.S., she has recently connected to international organizations and sources and is expanding her coverage. She has categorized these cases into: Doctor Donor Fraud, Donor ID Fraud, Donor Medical/Info Fraud, Donor Permission Fraud, and Large Sibling Groups. Who knew there were so many types of fraud occurring with donor conception?!

For any attorney interested in this area, the website is a wealth of information. And, if you weren’t previously interested, take a look and you will be. These cases grapple with the very heart of what it means to be a human, what information we are entitled to know about ourselves, and how judges must apply outdated laws to cutting-edge technological advancements, modes of conception, and family configurations not yet imagined at the time of their creation.

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In addition to her focus on the legal side of donor fraud, Portugal has been passionate about bolstering mental health resources for victims of donor fraud. Portugal described her recent project with the Counseling Collective to help connect skilled mental health professionals — trained in the complexities of MPE/NPE (misattributed parentage/nonparent expected) — and connect them with victims in need of professional mental health support.

As if that wasn’t enough, Portugal has also been working with other stakeholders, including the organization Right To Know, on legislation, both in her home state of Washington and other states, to support the rights of donor-conceived people. Right To Know is an advocacy group for people who discover one or more of their genetic parents is not their legal parent. In addition to promoting access to trained mental health professionals, the group advocates for changes in the law to reflect a person’s right to know their genetic identity.

You would think that we could all agree that doctors should not use unauthorized sperm, eggs, or embryos with their patients, and that a law against such actions should be a no-brainer. Fascinatingly, Portugal describes how these laws have faced opposition. Some have argued that there is no need, and that no doctor is going to engage in this type of behavior now. Let’s hope! But Portugal argues that we have probably only seen the tip of the iceberg of these cases, and that the expanding use of DNA kits is going to continue to reveal a substantial number of victims. And those victims deserve a path to justice. Don’t they?

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].

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