Why Fertility Doctors Get Away With Using Their Own Sperm
Gaps in laws around fertility fraud and the doctors that perform the services have been highlighted in some recent documentaries and settlements.
There are many online tests where you submit some of your information and can find out things from your sample, like what you’re allergic to or maybe learn more about your ancestors. But some of those tests, like DNA tests, may reveal information that’s hard to stomach.
More and more people are taking these tests and discovering that they are victims of fertility fraud. This is when someone goes in thinking they’re getting donor sperm or in some cases the sperm of their spouse or partner, and the doctor decides to use their own sperm instead — without consent.
This has been happening for years, but surprisingly, because of gaps in laws around fertility fraud, these doctors aren’t necessarily considered criminals. This has been highlighted in a few documentaries and recent settlements.
HBO released a documentary two years ago called “Baby God,” about a Nevada doctor, Quincy Fortier, accused of using his sperm on several patients. He was sued by two patients, but Fortier was never actually charged with any crime. Those cases were settled outside of court.
Fortier never lost his medical license either. He died back in 2006 at the age of 94. While he was alive, he didn’t admit to any wrongdoing, but in his will, he confirmed he was the biological father of his patient’s children.
In March of this year, a Vermont jury offered a first-of-its kind award of over $5 million to one woman who accused Dr. John Boyd Coates of using his sperm to impregnate her back in the '70s. The doctor was found liable on all counts of the lawsuit including fraud and breach of contract.
A month later, Colorado awarded nearly $9 million to families who sued Dr. Paul Jones for using his own sperm during procedures between 1975 and 1997.
Eight families filed suit against Jones and the clinic where he worked, and five of those families settled before the case went to trial. Two other claims against Jones are still active, meaning once again: Jones was never actually charged with a crime.
Jones refused to tell a reporter from KUSA in Denver whether he had fathered the children named in the lawsuit. He said he didn’t deny or admit it, but he did, however, give up his medical license days after the lawsuit was filed.
In May, “Our Father” was released on Netflix. It tells the story of Dr. Donald Cline from Indiana. Over 90 people discovered that they were his biological children. There were concerns of some of his offspring dating and even marrying their half-siblings by mistake.
He pled guilty to obstruction of justice for lying about using his own sperm, which resulted in a $500 fine and no jail time. More than $1.3 million have been paid in civil suits against Cline.
DonorDeceived.org tracks fertility fraud legal cases and has found more than two dozen U.S. doctors who have been sued. The majority of the doctors who have been accused were discovered as a result of DNA tests, like Ancestry.com or 23 and Me.
A lot of these donor-conceived children were born in the '70s and '80s, long before these commercial DNA tests existed.
"It seems that most of them dry up around '87, '88, because that's when the standards changed, and the associations such as the American Fertility Society now the American Society for Reproductive Medicine had promulgated new standards that said you need to use frozen sperm, you need to test this repeatedly, and you can only test a sperm sample repeatedly by freezing it," said Jody Madeira, law professor at Indiana University Bloomington. "So, by definition, you know, protections against HIV mandated that the practices that allowed these doctors to engage in fertility fraud had to change."
Madeira is a fertility fraud expert who was also featured in “Our Father" and the author of “Understanding Illicit Insemination and Fertility Fraud from Patient Experience to Legal Reform.” She says she wouldn’t expect to see this as much in the future because the laws have changed over the last few decades, but for the cases that are on the books, she says it’s complicated.
Many victims say this is sexual assault or rape since they didn’t consent to any of this, and the doctor had to perform a sexual act for all of this to happen. But the laws behind this make cases difficult to prosecute.
"I think that there is either — in many states — a lack of fit between the available offenses and the conduct or, you know, prosecutors just say, 'Gee, there is no medical records,'" Madeira said. "Doctors claim that they don't recall, you know, doing certain things, and so even the genetic test itself is not valid proof that, you know, for example, a rape occurred... Between the problems of proof and the passage of time, I think a lot of prosecutors have just been very reticent about bringing these types of charges."
Madeira and advocates who have experienced this firsthand have helped pass even more legislation in recent years.
So far, 10 states have passed fertility fraud legislation. California was the first in 1996, the other nine states only started passing bills as recently as 2019.
"Largely, this is a... new social movement," Madeira said. "So for years, the donor-convinced community has been trying to draw attention to the perils that they fall into, sort of as a human rights matter. Now, here in America, we don't see donor conception as a human rights issue; we see it as a market issue. And so we allow the sperm banks, the fertility clinics, the intended parents to make choices for the donor-conceived siblings that they will never be able to reverse. For example, you know, they can choose to use an anonymous donor. In Europe, these choices are not available because the anonymity is a thing of the past."
This can cause a lot of trauma for patients and their offspring when they first find out they have been victims of fertility fraud, but there are countless resources — including counselors, support groups and Facebook pages — that are available to help guide anyone who has experienced it. The U.S. Donor Conceived Council has a list of all of those resources.
"The other thing that's really weird about this is you learn from your child that you were raped, basically.. so in what other crime do you learn that you are a victim of a crime through a technological mechanism that's promoted like a direct-to-consumer genetic test that you didn't even take?" Madeira said. "It's your child that took the test, and then your child has to break the news to you. And it's almost like you are roofied, you know, 30 years ago because you have no recollection."
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