Fertility Fraud: An Update
Oct 21, 2019
Author: Dr. Jody Lynee Madeira
Published in: ASRM News October 2019
News about “fertility fraud” legislation and lawsuits is appearing with increasing frequency in national and international headlines. Currently, California, Indiana, and Texas have bills criminalizing fertility fraud. While California’s law was passed in 1995, the Indiana and Texas laws were recently enacted and took effect in 2019. In addition, there are now at least five lawsuits pending against physicians and/or clinics for fertility fraud claims in North America. This column will provide a brief overview of state fertility fraud laws and lawsuits as of October 2019.
In the typical fertility fraud fact pattern, an adult learns that he or she has different paternal genetic relations and/or unexpected half-genetic siblings. This adult may have already known that he/she was donor-conceived or may discover that fact through the genetic testing process. Conversations with these new relations suggest that something just isn’t right. In some cases, half-genetic siblings find that their parents all sought treatment from the same physician, and in others, their investigative efforts reveal a genetic relationship to the physician. When asked about the circumstances of their fertility treatment, their mothers state that they were told (based on their history of infertility) that the sperm would come from their husbands or anonymous medical residents resembling their husbands. Doctor-conceived individuals and their parents have sought accountability through a number of routes, including speaking with journalists and other media personalities, seeking state law reform, filing a complaint with a state medical board, reporting the physician to a prosecutor or a state Attorney General, pursuing a private legal settlement, and filing a civil tort suit.
State Fertility Fraud Laws
CaliforniaThe California legislature enacted Penal Code § 367g in 1996, following a scandal at the University of California, Irvine fertility clinic where reproductive endocrinologists used patient’s reproductive material without their consent. The law makes it unlawful for anyone to knowingly use or implant reproductive material for purposes other than those to which the progenitors have consented. Violations are punished by imprisonment for three to five years, by a fine of up to $50,000, or both.
In Indiana, doctor-conceived individuals and their parents involved in the Donald Cline case attempted to pass a fertility fraud bill before 2019, but efforts stymied when state legislators were unsure whether or not the conduct could be punished under existing criminal laws. In 2019, however, two bills were introduced in the state House and Senate proposing the creation of new civil and criminal causes of action for fertility fraud. For a brief period of time, there was controversy over the criminal provisions; a state senator refused to hear the bill on the grounds that the legislation was unnecessary. Thus, the bill was initially passed without criminal law provision; the bill was subsequently amended to reinsert the criminal cause of action. The amended bill passed unanimously through the Senate (49-0) and House (93-0). The bill was signed into law by Governor Holcomb on May 5, 2019, taking effect July 1, 2019. The bill’s criminal provisions make it a level 6 felony (the lowest level under Indiana law) for someone to make a misrepresentation involving human reproductive material and a medical procedure, device, or drug. The law also creates a civil cause of action for fertility fraud, allowing mothers, their husbands, or the doctor-conceived individuals they conceive to receive liquidated damages of $10,000 or seek additional damages at trial. It is significant that the Indiana law allows doctor-conceived individuals to sue. In the state of Idaho, such parties are barred from suing for malpractice on the grounds that they could not have been a patient of the defendant doctor. Individuals have up to five years to bring a civil suit after a DNA test or other evidence confirms the relationship or the defendant physician confesses. Ex post facto doctrine prevents the state from charging Cline with violating the criminal provisions of this law; it can only be applied to doctors who engage in this conduct in the future.
In the spring of 2019, Eve Wiley and her mother, Margo Williams, approached a Texas state senator for help on passing a fertility fraud law after they learned that her mother’s doctor, Kim McMorries, had substituted his sperm for that of the California Cryobank donor whom Margo had selected. The Texas legislation took an altogether different tack than the Indiana law, making it felony sexual assault for a healthcare services provider to use donated human reproductive material on another person in an assisted reproductive procedure without the donor’s consent. Physicians violating this provision can be sentenced to between six months and two years in prison and be fined up to $20,000. Under ex post facto doctrine, this law cannot be applied retroactively to doctors like Kim McMorries. As a side note, it would not be possible to sue a doctor like McMorries under current Texas state law because under state law all medical malpractice claims must be brought within 10 years of the injury—a time period that will have already lapsed for all victims of offenses in the 1970s and 1980s.
LawsuitsThere are currently several suits pending in North America against physicians that allege fertility fraud.
Donald Cline (Indiana)In 2015, news broke that retired Indianapolis physician, Dr. Donald Cline, had intentionally inseminated former patients with his own sperm in the 1970s and 1980s. Doctor-conceived individuals learned of the connection through direct-to-consumer genetic testing, and two filed a complaint with the Indiana Attorney General. Though Cline initially denied the allegations, law enforcement conducted a second genetic test that confirmed Cline was the biological father of the complainants. Cline was charged with two counts of felony obstruction of justice and pleaded guilty. In December of 2017, he was fined $500 for his conduct. Cline’s former patients and doctor-conceived individuals successfully advocated for the passage of a state fertility fraud law in 2019, but have not publicly spoken about their involvement in civil suits against Cline. Cline voluntarily surrendered his medical license in August 2018.
Norman Barwin (Canada)Norman Barwin, former president of the Canadian Fertility Society and a recipient of the Order of Canada (which he returned after admitting to professional misconduct), was sued in November of 2016 in a class-action lawsuit filed by more than 150 plaintiffs, including former patients, their husbands, and Barwin’s adult doctor-conceived offspring, as well as other men who allege that their sperm samples were contaminated, lost, or unused. Claims include breach of contract, negligence, failure to use selected sperm, keep proper records, prevent sample contamination, battery, misrepresentation, emotional distress, and other claims.
Gerald Mortimer (Idaho)Former patients Sally Ashby and Howard Fowler, together with their doctor-conceived daughter, sued their former fertility physician, Gerald Mortimer, on March 30, 2018. In 1980, Ms. Ashby conceived a daughter after Mortimer had helped them conceive through insemination, allegedly using a sperm sample, 85% of which came from Fowler and 15% allegedly from an anonymous student resembling Fowler. Mortimer delivered Ms. Ashby’s daughter and served as her gynecologist afterwards. As an adult, the daughter took a genetic test only to find she was matched to the doctor with a predicted parent-child relationship. In their lawsuit, the family alleged medical negligence, informed consent violations, breach of contract, consumer protection act violations, employer liability, and negligent supervision. In pretrial motions, the daughter has since been dismissed from the lawsuit on the grounds that a) all claims brought from a medical event must be brought as medical malpractice; b) only patients can file medical malpractice suits, and c) she could not have been a patient of Mortimer because she was not conceived when the alleged injury took place.
John Boyd Coates (Vermont)On December 4, 2018, Cheryl and Peter Rousseau filed suit against their former fertility doctor, John Boyd Coates, of Berlin, Vermont. Coates told the Rousseaus that he would obtain a sample from an anonymous medical student resembling Mr. Rousseau who had been tested for purposes of being a donor. After undergoing inseminations performed by Coates in 1977, Mrs. Rousseau became pregnant, and had a daughter whom Coates delivered. Coates continued to serve as her gynecologist for a year afterwards. Their adult daughter took a direct-to-consumer genetic test and learned that Coates was actually her biological father. In their lawsuit, the Rousseaus allege medical negligence, informed consent violations, emotional distress, battery, breach of contract, fraud, and consumer act violations. They also are suing the clinic where Coates practiced.
G.H. (California)Ms. Grinnell and her daughter filed suit against a doctor identified only as “G.H.” on March 12, 2019, and against Kaiser Foundation Hospitals in Sacramento, California. Ms. Grinnell alleged that G.H. inseminated her with his own sperm in 1987 without her consent, after telling her that the donor was an anonymous donor. Horrifically, the Grinnells also allege that G.H. became the daughter’s gynecologist when she reached adolescence. G.H. is allegedly retired and is no longer practicing at Kaiser facilities.
Guest author, Dr. Jody Lyneé Madeira, is Professor of Law at the Maurer School of Law, Indiana University – Bloomington. Dr. Madeira’s current research interests include bioethics and law and medicine, with a focus on reproductive technology. Her most recent book is Taking Baby Steps: How Patients and Fertility Clinics Collaborate in Conception (University of California Press, 2018).
A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.