Scores of families, using commercial DNA testing kits, have learned in recent years that, decades ago, their doctors lied to them. The doctors told infertile couples seeking artificial insemination that they would use sperm from a medical student, from someone who resembled the husband or simply from an anonymous donor. Instead, the doctors used their own sperm — a disturbing and profound violation of medical ethics. It’s called fertility fraud. But is it unlawful?
For now, the unseemly conduct seems to fall into a legal gray area. “Every lawsuit to date by former patients and their children has been unsuccessful,” says Dov Fox, a law professor at the University of San Diego and the author of “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law.” Last year, for example, a federal judge in Idaho dismissed a claim brought by Kelli Rowlette, who sued Dr. Gerald Mortimer, her biological father, for using his own sperm to inseminate her mother. Rowlette “was never a patient of Dr. Mortimer’s with respect to the alleged misconduct that took place before she was born,” the judge wrote in his decision. So Dr. Mortimer “did not breach any duty of care to Rowlette, because he owed her none.”
Criminal prosecutions have also had only limited and indirect success. In the seven cases in which health care professionals have been credibly accused, Fox said, no doctor has been convicted of fertility fraud as such. Take the case of the Indiana doctor Donald Cline. Prosecutors obtained a guilty plea, but the charge was obstruction of justice, based on lies he told investigators to cover up his actions. (After using commercial DNA testing kits, at least 65 people concluded that Dr. Cline was their biological father.)
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The doctors’ motives for engaging in fertility fraud — which is descriptive shorthand rather than a legal term of art — were murky and varied. Some no doubt thought it cheaper and more convenient than recruiting donors. Some may have been sexually attracted to their patients. Others, driven by ordinary self-regard or something more pathological, may have believed they were doing their patients or the world a favor.
Given the uptick of these cases, legislation has started to trickle in. In the last year, Indiana and Texas have enacted laws on fertility fraud. The Indiana law, pressed by the parents and children affected by Dr. Cline’s conduct, makes it a felony to use sperm to inseminate patients without the permission of donors and recipients, and it lets the patient, her spouse and their children sue health care providers. The Texas law was propelled by a similar case and makes fertility fraud a form of sexual assault if a health care provider uses sperm from a donor without the patient’s consent. Doctors convicted under the law would be required to register as sex offenders. Bills like these are at various stages in Connecticut, Idaho, Nevada, Utah and Vermont.
The new laws mostly address old problems: Fertility fraud was a product of an era in which fresh sperm was not always easy to obtain and off-the-shelf genetic testing was hard to imagine. But Jody L. Madeira, a law professor at Indiana University Bloomington who has written about fertility fraud, says even symbolic laws have a role to play. “The law loses its legitimacy and its authority,” she says, “when it says, ‘We can’t do anything about it, so we wash our hands of it.’ ”
