Understanding Illicit Insemination and Fertility Fraud, From Patient Experience to Legal Reform

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.