If you are considering artificial insemination, you can not help but read about alarming cases of malpractice and insemination fraud. A simple Google search will return a staggering 1.8 million results on the topic. With social and mass media making it as hot of a topic as any worth the publicity, you naturally get the impression that the risk of such a fraud nowadays is very high. But is it? Does insemination fraud occur in modern clinics often? To answer these questions, we need to go back to history and understand the root causes of these cases, as well as the evolution of the fertility industry over the past 50 years.
In the 1970s and 80s, infertility was still a rather new medical condition. Even though fertility clinics already existed, there were neither reliable sperm banks nor donor catalogs. Instead, doctors were usually responsible for finding donors. And the donors were usually medical trainees. Trainees were easily accessible, perceived to be successful, and predominantly male. They were the “perfect” donors (The Atlantic).
Although sperm donation was an existing practice, it was kept in secrecy. Even in the very first case of successful donor insemination, the patient, the wife of a wealthy man from Pennsylvania, was unaware that she had been inseminated with a donor’s sperm. The doctor, William Pancoast, was unable to help the infertile husband, so in an act of desperation, he inseminated the wife with the sperm of a medical student. Pancoast only told the husband afterward, who then agreed to never reveal it to his wife. By the 1970s, donor insemination had been performed countless times, but still in secrecy. Doctors advised parents not to tell their doctor-conceived children to avoid potential psychological trauma and questions about the biological father. Neither the parents nor the doctors believed that donor information was relevant enough for the patients to know, or that one day their children may face a potential identity crisis. Luckily, secrecy and anonymity have been lifted by the rise of direct-to-consumer genetic testing and published research on the topic.
Medical trainees were not the only donors though. There were also quite a few cases, discussed later in this paper, of doctors using their own sperm that were found to be the most prominent of all insemination fraud cases. There is not much publicly available data to understand their motivation because most of the doctors guilty of insemination fraud choose not to discuss their motives and intentions following the guidance of their legal counsels. Therefore, doctors’ motives have to be somewhat theorized. Some doctors may have believed that using their own sperm would be cheaper and/or more convenient, and therefore they believed that they were doing the right thing. Donald Cline, a doctor whose case will be discussed further, might have believed that he benefited his patients because he used fresh sperm instead of frozen sperm, which at the time had higher success rates (The Hastings Center). Other doctors could have done so to avoid disappointing the patients when a donor could not be found. Finding a donor in the past was the doctor’s job after all. Some could have been driven by self-regard or were even sexually attracted to their patients.
If the practice of donor insemination was kept in secret, then how do instances of infertility fraud get discovered? The credit goes to the rise of direct-to-consumer genetic testing. Unsuspecting doctor-conceived children use commercial DNA kits (Ancestry.com, 23andMe.com, etc.) and learn to their surprise that they are biologically related to their mother’s fertility doctor and share multiple half-siblings (individuals that share genes with a doctor, and therefore with each other).
Interestingly, new siblings tend to get discovered in waves, especially during holiday seasons when at-home DNA testing kits are given as gifts. Many of these children and their families then go on to deal with ethical and legal issues, including lawsuits against their healthcare providers. It is worth mentioning that the reason for many of the suits being filed recently is that frauds only get discovered when the doctor-conceived children reach adulthood (25 some years after the actual frauds occur). This trend will likely change, however, because the genetic testing kits are becoming widely available to younger generations now.
The best-known insemination fraud legal case is the one against Donald Cline, a former fertility doctor in Indiana. He told his patients that their sperm donors were medical residents and that each one was used for only three successful pregnancies, but instead, he inseminated his patients with his own sperm, creating more than 50 offspring through the 1970s and 80s. In 2015, news broke out that Cline used his own sperm on his patients, and two of the doctor-conceived children filed a complaint with the Indiana Attorney General. Cline received a letter from the attorney general’s office notifying him of the investigation and wrote back at least twice that he had never used his own sperm. Obviously, this was untrue, so Cline was charged with two counts of felony obstruction of justice. In December 2017, he was fined $500, and in August 2018, voluntarily surrendered his medical license (SART). It is important to note that he wasn’t charged with any wrongdoing directly related to the fraud, since there were no laws on insemination fraud in Indiana at the time. Even though some fertility physicians might commit acts of malpractice and therefore deserve to be penalized, only the law can define the consequences they would face. Courts have been playing catch up for years trying to establish a precedent. If Cline hadn’t lied about using his own sperm, it is likely he wouldn’t have been charged with anything, because there were no laws on insemination fraud in Indiana at the time.
Another important case involves fertility physician Gerald Mortimer of Idaho. Former patients, Sally Ashby and Howard Fowler as well as their doctor-conceived daughter, sued Mortimer on March 30, 2018. After assisting in multiple inseminations that failed, Mortimer suggested mixing anonymous sperm with Fowler’s, specifically 15% from the anonymous donor and 85% from Fowler, to increase chances of conception. The couple agreed after being told that the anonymous donor would be a college student resembling Fowler. The procedure worked and Ashby had a daughter. In pretrial motions, the daughter was 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” (SART). The litigants made a single malpractice claim instead of multiple (because it is easier and simpler), and the plaintiffs claimed they only suffered damage upon discovering that Mortimer was the father of the daughter (to escape the statute of limitations, which is a law passed to set the maximum time after an event within which legal proceedings may be initiated). Eventually, in February 2019, Judge Nye ruled in favor of the plaintiffs on multiple counts, denying Mortimer’s motion for summary judgment (judgment entered by a court for one party and against another party) and granting the plaintiff’s request to include a request for punitive damages. The court also shut down Mortimer’s argument against the plaintiff’s addition of punitive damages because Mortimer intended to do good. The case has not been technically closed since the upcoming trial regarding punitive damages still awaits.
There are two other recent cases worth mentioning. The first is against John Coates of Vermont (and the clinic he works at), which was filed on December 4, 2018, by former patients, Cheryl and Peter Rousseau. Coates informed the Rousseaus that he would use a sperm sample from an anonymous medical student resembling Mr. Rousseau. In 1977, Mrs. Rousseau became pregnant and gave birth to a daughter. As an adult, the daughter took a genetic test and discovered Coates was her biological father (SART). In this case, the Rousseaus were seeking $75,000 in damages. It is unclear whether there were any ruling or findings, or if the plaintiffs received the $75,000 (Daily Mail). The second suit is against a doctor known as “G.H.”, which was filed on March 12, 2019, by former patient Ms. Grinell and her daughter. They are also suing Kaiser Foundation Hospitals in Sacramento, CA. Ms. Grinell alleged that G.H. inseminated her with his own sperm in 1987, and then became the daughter’s gynecologist when she reached adolescence. G.H. allegedly retired and no longer works at Kaiser (SART). Other than that, there are no known findings or rulings in that case.
The news that “You were inseminated with your doctor’s sperm” or “Your biological father is your mother’s fertility doctor” has a tremendous effect on both the parents and their children.
First, let’s discuss the psychological impact that such news has on doctor-conceived children. Many of the affected individuals tend to experience some sort of identity crisis. Heather Woock, one of the children of Donald Cline, explained, “‘I couldn’t look in the mirror and think about, ‘Where did my eyes come from? Where did my hair color come from?’ I didn’t even want to think about any of that’” (KHN). Woock was not only unaware that her real father was Cline, but also that she was conceived through artificial insemination. Genetic identity has a great influence on the life one leads; an individual hears stories of their family’s past, notices the similarities they share with family members, and even makes decisions with the help of family members. Their whole life they believe they are the way they are due to the way their family is, but once one discovers that they aren’t related to those that they thought they were, they reflect on themselves and question their past decisions. One could even believe that up to that point, their life was a huge lie. Eve Wiley, a child of Dr. McMorries, put it this way: “‘You build your whole life on your genetic identity, and that’s the foundation. But when those bottom bricks have been removed or altered, it can be devastating’” (New York Times).
Other doctor-conceived children reacted more positively because some of the questions and doubts they had since childhood, were finally answered and explained. For example, Kylene Gott, a child of Donald Cline, who felt disassociated in jobs and social situations her whole life, stated, “‘I haven’t really known who I am; that’s why I haven’t been able to figure out what I’m supposed to do in the world’” (The Atlantic). After learning that she was related to Cline, she was finally able to explain to herself why this dislocation existed. She also learned more about herself by doing research on her half-siblings and dissecting their lives to find similarities.
Some other children became angry with their parents and/or their doctor for not telling them that they were artificially conceived, like Heather Woock’s. The Atlantic stated, “‘The hardest part, she [Heather Woock] says, is ‘processing that my parents outright lied to me throughout my childhood’”. Another child worried she “‘inherited the DNA of a man who would lie to his patients and abuse his position as a doctor’” (The Atlantic). Others were upset that they had multiple halfsiblings, such as children of Cline. Many of the half-siblings in Cline’s case stayed in Indiana and often crossed paths. As a result, some have wondered, “‘Did you not consider we all live in a relatively close area?’…‘Did you really think … that we wouldn’t meet? That we wouldn’t maybe date? That we wouldn’t have kids who might date? Did you never consider that?’” (The Atlantic). The children not only had to question themselves but every innocent date or crush they ever had.
Now, let’s explore the psychological impact insemination fraud can have on its victims, the former patients. Once again, the reactions are varied. For example, when Kylene Gott revealed to her mother that she was biologically related to Donald Cline, her mother’s response was, “‘Well good…If it was going to be anyone, I’m glad it’s him’” (The Atlantic). Gott explained that her mom later mentioned seeing pictures of Cline’s children and thinking about how pretty and intelligent they were. She had wanted kids like that. Another woman, we will call her “Susy”, explained that her mother was strangely calm when she informed her about her father being Cline. Some of the donor children did not want to have their names mentioned. Susy found this especially upsetting because she believed her father’s sperm was used, not a donor’s, and after confronting her mother, she learned that her mother always knew, and both her mother and father promised to never tell, even though the father died years before (it’s clear that parents did take doctors’ suggestion to never tell their children). Susy regrets finding out the truth, which supports the theory that doctors were worried about causing distress to children. Other parents reacted similarly with intentions to keep what happened a secret. When a man, we’ll refer to him as “Caleb”, informed his mother of being related to Cline, she explained that she had thought that Cline used her husband’s sperm. But weirdly, she was angrier with Caleb finding out the truth. She made him promise to never tell his father. “‘You and I gotta take it to the grave,” she said sternly (The Atlantic). Many other patients were understandably upset with what their doctors did. Fertility doctors are meant to be trustworthy, especially during such a difficult and vulnerable time as getting pregnant. During a telephone interview with Stateline, Liz White, a former patient of Cline, said, “‘I felt like I was raped 15 times and didn’t know it’” (PEW). She was disturbed with what happened, in fact so much so, that she and her doctor-conceived son, Matthew White, led the movement to pass an insemination fraud law in Indiana. Fortunately, the bill was passed (we will discuss this state law later in this essay).
Now that we learned about the history of insemination fraud, the most prominent legal cases, and the impact of finding out the truth on both patients and their children, it is a good time to answer the question regarding the likelihood of insemination frauds in the modern world. In short, it is my conclusion that the risk of insemination fraud happening today is relatively low. “‘Unless you’re in a small clinic where there’s absolutely no checks and balances, I can’t even imagine that today’” said Dr. Bob Colver, a fertility specialist in Indiana (KHN). The reasons for this include new legislation related to insemination fraud and changes in the fertility clinic environment.
Let’s start with the legislation. There are no national laws in place criminalizing “fertility fraud”. But some states, specifically California, Indiana, and Texas, have enacted fertility fraud laws. The California legislature was passed in 1996 and makes it illegal 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, a fine of up to $50,000, or both (SART). The Indiana legislature was passed in 2019 after the Donald Cline case. The bill makes 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. It also allows mothers, their husbands, and or the doctor-conceived children to receive liquidated damages of $10,000 or seek additional damages at trial (SART). It is important to mention that Indiana law allows doctor-conceived individuals to sue. In certain states, such as Idaho, doctor-conceived individuals are not allowed to sue for malpractice because they were not patients of the defendant doctor (this is demonstrated in the Gerald Mortimer case). The Texas legislation was passed in 2019 and makes it a 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. Violations are punished by imprisonment for 6 months to 2 years, and a fine of up to $20,000. The law also states that all medical malpractice claims must be brought within 10 years of the injury, which unfortunately is a period that has already lapsed for all victims of offenses in the 1970s and 1980s (SARTS).
You may wonder why there are only three “fertility fraud” state laws in place. To be honest, there is no exact answer. However, the answer can be theorized. To pass a criminal law, senators must categorize the crime, agree on the criminal provisions, and the violations. With something as broad as “fertility fraud” it can be hard to categorize the crime, and therefore, agree on the criminal provisions and the violations. For example, the Texas bill qualifies insemination using sperm from someone who the patient has not consented to as sexual assault, while the Indiana bill does not (Vice). The lack of laws could also be due to the limited number of “fertility fraud” cases. “‘Changes for state law tend to be brought by people who are angry that they weren’t able to attain accountability,’ she [Jody Madeira, a fertility fraud expert and professor of law at Indiana University Maurer School of Law] says, but we won’t know whether or not fertility fraud is illegal in other states until similar cases arise and lawsuits are filed that put states’ fraud and sexual assault laws to the test,” Vice states. State governments are stating that if a state hasn’t had any cases on a specific crime, what is the point of taking action against it. Fortunately, many other states are working on passing laws. Those include Connecticut, Utah, Idaho, Nevada, and Vermont. And hopefully, many other states will follow in their legislative footsteps.
Now let’s talk about the changes in the clinic environment, that covers both clinical protocols regarding artificial insemination procedures and administrative processes.
Let’s start with the administrative processes, more specifically, the use of modern software. Intelligent medical software has been developed to increase the productivity of clinic staff while ensuring compliance with existing regulation There are a few solutions in the market that include modules for ART lab management, STIM sheet, quick billing, and practice management. The ART lab management module helps manage procedure cycles, document chain of custody, document and manage the cryo storage inventory and the history of every tissue sample collected, and manage all activities related to the 6-day life cycle of an embryo. The STIM sheet module aids clinic workers with managing IVF, FET, Ovulation, Donor, and Retrieval STIM sheets, ordering lab tests for their patients and partners and viewing personal information. The practice management module enables scheduling, authorizations and referrals, patient tracking, revenue cycle management, and reporting. The software systems are meant to enhance productivity, reduce liabilities, improve data management, and deliver better care. Software systems like that help minimize the risk of malpractice and insemination fraud. Fortunately, many of the largest modern fertility clinics use these types of software systems.
Now, let’s talk about the practices clinics implement to prevent fraud, specifically insemination fraud. There is no universal set of protocols; each clinic has its own approach. Clinics do, however, have a set of regulations and guidelines to follow. First, clinics need to maintain accurate patient medical records. The records must constantly be updated to track all past and planned events relevant to patient medical history. These records also come in handy in case of malpractice suits. Improperly documented service is hard to prove, so it is in the interest of the healthcare providers to ensure that all records are detailed and complete. Second, clinics need to maintain patientphysician transparency. The American Society of Reproductive Medicine (ASRM), a non-profit organization dedicated to the advancement of ART, emphasizes this. In ASRM’s article titled “Disclosure of medical errors involving gametes and embryos: an Ethics committee opinion,” it is clearly stated: “…in which gametes or embryos are misdirected, the obligation to disclose errors is without exception. Here the patient’s right to know is compelling; physicians are obligated to disclose to patients any error as soon as discovered that could lead to a child being born with an unintended paternity or maternity”. It is important to note that ASRM sets ideal guidelines that clinics must follow, and fortunately, most of them do. This means that clinics should disclose all errors to their patients as stated by ASRM. Some doctors, like the ones discussed above, might have believed that inseminating their patients with their own sperm was for the best and that in their case, disclosure was not an option because it would cause harm and/or stress. This, however, is considered misguided by the ASRM. It is up to the patient to decide on the best course of action, especially since they are the ones affected by it the most. Additionally, justifying that disclosure isn’t possible because of concerns for patients’ feelings is illogical. Even if errors weren’t disclosed to a patient, it is still likely that the errors would eventually be discovered by the patients and their families. This is similar to when doctor-conceived children learned of their parents’ fertility doctor’s unethical actions 20-30 years later. The doctors thought they would never get caught for what they did, but because of advancements in technology, they were. Withholding errors or any actions that patients didn’t grant consent for, and hoping they will never be revealed is worse than disclosing them immediately because, by the time the errors are discovered, much more damage is done. It can be psychological: many of the doctor-conceived children mentioned above had identity crises and felt like their childhoods were tainted. It can also be financial and legal. ASRM explained, “If one does not tell and the patient later learns of the error, then the patient ‘is likely to be more hostile and suit-prone’ because of the perceived violation of the practitioner’s obligations to the patient…” Therefore, patients who are told immediately of the error(s) are less likely to be hostile and sue, than those who are told later or never.
So, what have we learned about the potential risk of insemination fraud in present times? When it comes to the fertility clinics, the chance of insemination fraud occurring (due to malpractice) is rather low. However, likely, more of the past fraud cases are yet to be discovered thanks to the rise in consumer DNA testing. At the same time, the widespread availability of DNA tests is also becoming a powerful tool for future parents to validate that they have not become a fraud victim, and as result, becomes a good deterring factor for potential malpractice. Patients now have access to more published research on the topic and can address their potential concerns before deciding on ART. Clinics are implementing practice management software as a way not only to improve clinic operations but also to minimize their exposure to potential malpractice suits. Lastly, because of new legislation, “fertility fraud” is becoming punishable in more states.
Certainly, with the growing popularity of fertility clinics and sperm banks, there is always a chance some other form of insemination fraud could occur. Recently, more people are learning of potential sperm donors falsifying their “resumes”, so even though a clinic might have state-of-the-art tools to prevent malpractice, and a patient would make her own choice of a donor that could be validated by a DNA test, she still might end up being a victim of a fraud. So stricter policies and checks have to be implemented for validation of backgrounds, medical history, and profiles of sperm donors in the future.
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