An Idaho U.S. District Court ruled this week that parents can provisionally sue the fertility doctor who, in 1980, used his own sperm to create their daughter—just so long as their claims aren’t barred by the many years that have passed since the alleged misconduct that DNA tests substantiate. The daughter—now almost 40—discovered the fraud when she tested her ancestry with a mail-order DNA kit.
In 2014, for example, families learned that a medical technician at a Utah facility had, more than twenty years prior, swapped his own sperm for that of IVF patients. The breach was discovered when a retired couple figured genealogy would be a fun family hobby for them and their grown daughter. It turned out that the since-deceased technician was also a convicted kidnapper.
The clinic’s 1998 closure and a fire that destroyed its records make it hard to know how many genetic offspring he may have produced this way.
Similar infractions prompted one Indiana state legislator to recommend making it a felony to fertilize or transfer sperm, eggs, or embryos without the permission of donors and recipients. This proposed “fertility fraud” law would have punished unconsented insemination or misuse of samples with hefty fines and prison terms of up to five years.
But the bill went nowhere.
This kind of deception is hard to uncover because the parents never expected that the fathers were biologically related. The whole point of assisted reproduction is that another man’s genetic material would be used to conceive their child. So that much they already knew. But they were promised and led to believe it was sperm from an anonymous donor—not the doctor himself.
These facts make it hard to say who, if anyone, was harmed, and how.
The father wouldn’t have passed along his genetics anyway. The mother consented to the fertility procedure. And the kids weren’t even conceived—indeed, had the doctor used a donor sample instead, the children who resulted from his sperm never even would have born. They owe their very existence to the doctor’s wrongdoing.
Judge David Nye was unconvinced.
“When a woman pursues artificial insemination,” Judge David Nye explained, “she and her loved ones entrust their physician with access to, and power over, areas of life that are unusually intimate and sacred. When that trust is unknowingly placed in a physician with evil hands and selfish motives, the fundamental right of procreation is debased and degraded.”
The biggest problem is that virtually all of the parents’ claims—informed consent, emotional distress, fraudulent concealment—appear to be barred by the statute of limitations. At least that’s what the defendant argued. The parents countered that normal filing deadlines were “tolled” because his deceit kept them from finding out. The court said too many facts are missing at this stage to determine which party had the better argument, but he preserved their medical malpractice claims for now.
I discussed the case with Above the Law when it was filed back in April.
And I write about its larger legal and social implications at greater length in a forthcoming project. This week’s decision is Rowlette v. Mortimer, No. 4:18-cv-00143-DCN, 2018 WL 5305538, (D. Idaho Oct. 25, 2018).