UNDERSTANDING ILLICIT INSEMINATION AND FERTILITY FRAUD, FROM PATIENT EXPERIENCE TO LEGAL REFORM.

• Author: Madeira, Jody Lynee

Abstract

Recently, several cases have been filed in North America and Europe alleging that fertility physicians inseminated former patients with their own sperm only to have this conduct come to light decades later when their unsuspecting adult children use direct-to-consumer genetic tests and learn that they are not biologically related to their fathers and often that they have multiple half-siblings. For instance, Donald Cline of Indianapolis, Indiana, has over sixty doctor-conceived children, with more continuing to come forward. Although these cases induce disgust, it has thus far proven difficult to hold these physicians legally accountable because their conduct falls within gaps in existing civil and criminal laws. This Article explores the legal contours of fertility fraud cases involving illicit physician inseminations, explaining why it falls through gaps in existing criminal and civil law and why it is essential to take whatever measures are necessary to hold physicians accountable. Part I discusses six physicians who have thus far faced criminal or civil charges for their conduct in North America and explores how artificial insemination has long been a stigmatized practice cloaked in secrecy. Part II discusses how fertility fraud violates various ethical and legal interests of female and male former patients and their doctor-conceived children. Part III assesses how Cline's illicit inseminations affected parents and progeny and how Cline's progeny learn of new genetic connections, what they think of Cline and his motivations, how they derive support from one another, their reactions to criminal proceedings against Cline, and why they regard a legislative "fertility fraud" bill as an ideal outcome. Part IV analyzes why it is difficult to hold physicians criminally and civilly liable under existing law, including excerpts from an interview with the prosecutor in the Cline case. Finally, Part V discusses successful efforts to overcome these difficulties through passing fertility fraud legislation in Indiana and Texas.

INTRODUCTION

In the opening scenes of the 1994 Lifetime movie Seeds of Deception, suspenseful piano music begins to play as a black screen displays the ominous words, "inspired by actual events." A doctor enters a medical office corridor from an interior door, and strides confidently towards the nurse's station, depositing a sperm sample vial en route to a patient records shelf. A nurse picks up the vial and, with a confused expression, asks the doctor about its contents:

Nurse: Dr. Jacobson?

Doctor: Hmm?

Nurse: This is a semen sample?

Doctor: Of course, from today's donor.

Nurse: Today's ...? I didn't see anyone.

[Doctor leaves the shelf and approaches the nurse.]

Doctor: And you won't. In this practice, I'm the only one who deals with the donors.

Nurse: Yes, sir.

Doctor: I realize that you're new here, but you must realize that my patients are guaranteed anonymity. And that's what they get.

Nurse: Yes, sir.

This movie plotline is the story of Cecil Jacobson, a physician who became infamous in the 1990s for hormonally stimulating false pregnancies and inseminating unsuspecting patients with his own sperm. Jacobson was not the only physician in the 1990s to commit heinous violations of patients' rights. The Orange County Register exposed scandals at the University of California, Irvine's Center for Reproductive Health, where physicians Ricardo Hector Asch, Jose Balmaceda and Sergio Stone allegedly misappropriated eggs and embryos from some patients and transferred them into others without consent, conceiving at least fifteen children in the process. (1) The university faced over twenty-five lawsuits by angry patients against the physicians and the school, which paid more than $27 million to settle claims. (2)

With the advent of direct-to-consumer testing, cases like Jacobson's are becoming more commonplace across the world. Parents Pam and John Branum were shocked to discover that their daughter, Annie, had been conceived at a University of Utah fertility clinic through the sperm of technician Tom Lippert, a felon with a kidnapping conviction; Lippert had already died when the fraud was discovered. (3) Beginning in 2016, cases began to emerge where male OB/GYNs had used their own sperm in the 1970s through 1990s to inseminate unsuspecting patients, only to have their deeds exposed decades later through direct-to-consumer genetic testing services. In North America, Donald Cline of Indianapolis, IN, has pled guilty to obstruction of justice after lying about his conduct, (4) and others such as Norman Barwin of Ottawa, Canada; (5) Gerald Mortimer of Idaho Falls, ID; (6) John Boyd Coates of Berlin, VT; (7) and a doctor identified by the initials G.H. of Sacramento, CA, (8) face civil suits. In the Netherlands, former patients and alleged doctor conceived children of the late Jan Karbaat, a physician who ran a sperm bank from his house, are seeking the right to have his DNA material compared to their own so that they may prove a genetic relationship. (9)

Former patients of these physicians speak of feeling violated and assaulted, their personal dignity and bodily integrity trampled, their family plans routed, and their trust broken. In an era where male infertility was heavily stigmatized, these women and men trusted their physicians to help them conceive, only to learn of egregious breaches of trust and gross trespasses upon their family relationships. Women were inseminated with sperm they had not consented to use and were intimately touched by a doctor who had moments before masturbated to ejaculation to produce that sperm sample. Men who consented only to the use of their own sperm, not donor sperm, were denied the opportunity to become biological parents when their samples were contaminated or unused. These men and women love the children they conceived, birthed, and raised, but remain adamant that they would never have consented to use their physicians' samples, even if it was ethical for their physicians to make this request in the first place.

For their part, the adult children born from illicit inseminations also struggle to come to terms with their conception. Often, these children did not even know that their parents had used donor sperm and had believed their psychological father and biological progenitor to be one and the same. Discovering the truth wrecks personal identity and destroys familial relations. Many doctor-conceived children confess they feel as if they were conceived through rape. Some have become estranged from their parents and siblings with whom they grew up. Children who knew they were "donor kids" must grapple with the knowledge of who their sperm donor was, and what that man did to their mothers and others, often wondering if the physician-donor passed along undesirable genetic traits.

Although fertility fraud cases induce social disapproval, it has proven difficult to hold the physicians legally accountable. As the recent case of Donald Cline illustrates, these cases seem to fall within gaps in civil and criminal law. Because women "consented" to the inseminations, these acts are not traditionally prosecutable as rape or sexual assault. Moreover, fraud can be a tough theory to argue depending on nuances of state law. These cases don't fall within "fraud in the factum," where a plaintiff agrees to undergo a procedure because of a misrepresentation that prevents her from accurately comprehending accompanying risks, duties, and obligations, such as signing an informed consent form that she is told is for artificial insemination but is actually for a hysterectomy. Instead, illicit inseminations constitute fraud in the inducement, where a plaintiff enters into an agreement knowing what it is about--here, intrauterine insemination--but gives consent based on false information the defendant provides. (10)

This Article explores the legal contours of fertility fraud cases involving illicit physician inseminations, using the case against Donald Cline as a primary example to explain why these harms fall through gaps in existing criminal and civil law, and why it is essential to hold physicians accountable. The Cline case is the largest fertility fraud case in the United States to date; as of April 2019, there are now over fifty-eight doctorconceived children. Moreover, its facts illustrate a wide range of fertility fraud scenarios, including the physician's substitution of his own sperm for both anonymous donors and patients' husbands. Additionally, Cline knew that his patients were in close geographic proximity to one another and could foresee that they were from similar social circles and/or socioeconomic backgrounds, raising profound concerns of consanguineous relationships. Finally, the Cline siblings have sought to hold Cline accountable in several forums--efforts that have either been successful or are still ongoing. These include filing a consumer complaint with the Indiana Attorney General, filing civil lawsuits, (11) and passing a "fertility fraud" bill creating civil and criminal causes of action for former patients, their partners, and doctor-conceived children.

Part I discusses six physicians who have thus far faced criminal or civil charges for their conduct in North America and explores how artificial insemination has long been a stigmatized practice cloaked in secrecy. Part II discusses how fertility fraud violates various ethical and legal interests of female and male former patients and their doctorconceived children. Part III assesses how Cline's illicit inseminations affected parents and progeny and how Cline's progeny learn of new genetic connections, what they think of Cline and his motivations, how they derive support from one another, their reactions to criminal proceedings against Cline, and why they regard a legislative "fertility fraud" bill as an ideal outcome. Part IV analyzes why it is difficult to hold physicians criminally...