There’s a new and disturbing term percolating in our modern-day consciousness: fertility fraud. In its simplest and most common form, fertility fraud occurs when an IVF physician, also called a reproductive endocrinologist, implants eggs, sperm, or embryos into a woman which are from a source that the woman did not consent to, too often from the IVF physician himself.
To be sure, fertility fraud is not a new phenomenon. California, for example, has made fertility fraud a crime since the mid 1990s. However, with the near ubiquitous nature of at-home DNA testing kits from companies like 23andme and Ancestry.com, previously unknown cases of fertility fraud are beginning to come to light.
Fertility fraud is big news.
Indeed, multiple examples of this have been written about in recent memory. As reported in The Atlantic, thanks to 23andme, it was discovered that an Indianapolis fertility physician, Dr. Donald Cline, during the 1970s and 1980s, implanted dozens of his patients with his own sperm, resulting in him becoming the father to over fifty children.
In another case, this one reported in Newsweek, a Vermont fertility doctor reportedly lied to his patients that he would implant sperm from a medical student resembling the recipient’s husband, but instead, the physician implanted his patient with his own sperm and never informed her. Eventually, when the information surfaced, the patient and her daughter filed a federal lawsuit against the physician and the clinic where it occurred. That case, Rousseau et al. v. Coates et al, Case No. 2:18-cv-00205-wks (D. Vt.) is ongoing.
Thankfully, there are a few states with statutes on the books.
In response to the outcry created by Dr. Cline’s actions, Indiana recently passed legislation criminalizing such behavior. Specifically, Enrolled Senate Bill 174 was signed by the Indiana governor on May 5, 2019 and became law on July 1, 2019. The law, in addition to making it a class six felony (the lowest level felony in Indiana) to make a misrepresentation regarding human reproductive material and a medical procedure, device, or drug, also creates a civil cause of action for fertility fraud where, among other things, statutory victims can seek liquidated damages of $10,000.
Texas similarly recently passed fertility fraud legislation in response to outrage caused by victimized citizens. Pursuant to Senate Bill 1259, which took effect on September 1, 2019, fertility doctors can now be charged with felony sexual assault by implanting genetic material into a hopeful mother without her informed consent. Violating this law subjects the physician to prison time from six months to two years and a fine of up to $20,000.
Finally, California, as already noted, passed Penal Code § 367g in 1996. Section 367g was passed after “[a]t least 60 California families allege[d] that […] medical personnel at fertility clinics at the University of California at Irvine and the University of California at San Diego transferred their sperm, ova, or embryos to researchers or implanted their sperm, ova, or embryos into other women without their signed written consent.” Violators of section 376g face potential jail time of three to five years, fines up to $50,000, or both.
Most jurisdictions leave it to the civil courts to resolve disputes.
That’s the case with Idaho, Vermont, and Canada, mentioned above. Oftentimes the physician in these cases has lost or surrendered his medical license in response to complaints, such as was in the case with Dr. Cline.
At this point you might be asking yourself, “Why are these doctors doing this?” No one can know for sure, but as one expert, Dr. Jody Madeira of the Indian University School of Law, speculated, in the New York Times, “In their minds, they may just have been helping their patients by increasing their chances of getting pregnant with fresh sperm for higher fertilization rates.”
Don’t Panic! Although devastating to the families currently affected by fertility fraud, the vast majority of reproductive endocrinologists and their staffs are upstanding, honest, and ethical professionals who have helped millions of people grow their families over the years. Nevertheless, the very prevalence of at-home DNA testing may actually be the dissuasive pressure needed to keep the less upstanding individuals from engaging in this despicable behavior today and into the future.
That said, if you believe you are the victim of fertility fraud, you should immediately seek legal advice from an attorney licensed in your jurisdiction who has experience in such matters, as strict timing deadlines might apply to your particular case.
As always, nothing herein is intended to constitute legal advice, nor form the basis for the creation of an attorney-client relationship because the foregoing is provided for informational purposes only.