By Jody Lyneé Madeira
A new reproductive technology case type is forcing state and federal courts to answer a difficult question: can a fertility doctor be sued for medical malpractice by a biological child whom he conceives in secret through artificial insemination, substituting his sperm for an anonymous donor’s without consent?
Shockingly, one court has now answered this question in the negative, finding that the donor-conceived child couldn’t have been the physician’s “patient” prior to conception.
This gravely unjust ruling allows doctors to deny responsibilities to the very children they were paid to help create. But there are ways to avoid these outcomes, both in existing case law and legislative remedies.
In recent “illicit insemination” lawsuits, donor-conceived children and their parents allege that the parents’ former fertility physicians impregnated women with their own sperm through the 1980s—a grotesque betrayal of patients’ profound and intimate trust.
The children, now adults, discovered this conduct after commercial genetic tests like 23andMe and Ancestry.com linked them to unexpected half-siblings and parental relations.
In North America, cases have been brought against Donald Cline (Indianapolis, IN), Norman Barwin (Ottawa, Canada) Gerald Mortimer (Idaho Falls, ID), and John Boyd Coates (Berlin, VT). It’s in this last case that an Idaho federal district court recently issued the first American illicit insemination ruling on October 25, 2018.
The facts of Rowlette v. Mortimer are sobering.
Sally Ashby and Howard Fowler consulted with Dr. Mortimer in 1980; thereafter, Sally underwent artificial insemination using sperm from both an “anonymous sperm donor” and Howard and conceived, giving birth to Kelli Rowlette the following year. In July of 2017, Kelli, then 36, submitted a DNA sample to Ancestry.com, and was shockingly matched in a predicted parent-child relationship to Gerald Mortimer—a complete stranger. Though Kelli told her parents, neither revealed how she was conceived. Months later, Kelli saw her birth certificate listed Dr. Gerald Mortimer as attending physician. Thereafter, Kelli, Sally, and Howard sued Mortimer for medical malpractice, lack of informed consent, fraud, and emotional distress, among other claims. Mortimer filed a motion to dismiss all charges.
The day of the hearing, Kelli got a nasty surprise: Judge Nye ruled she couldn’t sue because she wasn’t Mortimer’s patient before conception. Though Sally and Howard could sue, most claims were dismissed under Idaho law, which requires all claims involving inadequate health care to be brought as a medical malpractice claim. And though Judge Nye deemed Mortimer’s acts “abhorrent and concerning,” the work of “evil hands and selfish motives,” he thought that Mortimer’s deception didn’t cause Kelli’s distress: “the underlying cause for the shock . . . did not stem from the fact that Dr. Mortimer could be her biological father, but rather that the person she thought was her biological father—Fowler—was not.”
This is an unjust result.
The law exists to protect people like Kelli Rowlette, and they deserve the opportunity to obtain answers and accountability. It’s possible to reach a more just result that fits existing law and the lived experiences of reproductive medical professionals and patients. Taking this path takes us through tragic case law involving dangerous psychiatric patients, HIV notification, and blood transfusions.
Prior legal cases illustrate that physicians can owe duties to non-patients who they can foreseeably harm, even if those people are unknown and non-existent. In Tarasoff v. Regents of University of California, the California Supreme Court required a therapist who knew his patient intended to murder a prior paramour to “warn others likely to apprise the victim of the danger . . . or to take whatever . . . steps are reasonably necessary.”
In Renslow v. Mennonite Hospital, Emma, 13, was negligently given transfusions of Rh-positive blood although her blood was Rh-negative; she became pregnant eight years later, and her child was born prematurely and suffered grave complications from the transfusion. The Illinois Supreme Court held that Emma’s physician had a duty to her infant because it was foreseeable her children would experience serious complications.
Similarly, in Reisner v. Regents of the University of California, Jennifer, a child, received a blood transfusion during surgery; her doctor learned afterwards the blood was contaminated with HIV, but never told them; years later, Jennifer was diagnosed with AIDS and her boyfriend, Daniel, contracted HIV. After Daniel sued Jennifer’s doctor, the court ruled that the doctor owed him a duty of care because it was foreseeable Jennifer would mature and have intimate relationships.
These cases are powerful because they match the lived experiences of fertility physicians and patients.
In interviews I conducted for my recent book, Taking Baby Steps: How Patients and Fertility Clinics Collaborate in Conception, physicians and nurses discussed the duties they owed to potential children, even refusing to treat patients whose choices could profoundly endanger offspring. Patients, too, expect their medical teams to possess scrupulous ethics, and assume that their doctor isn’t their “anonymous” sperm donor.
Growing numbers of donor-conceived children like Kelli assert they’ve been deeply wronged by illicit insemination. In academic research interviews, several say they feel (in the words of one) “like I was a product of rape.”
This discovery profoundly undermines self and family identity; as another remarked, “[I]t’s just devastating on my own family. . . . It creates this very strange sense of trauma among anyone who is his progeny, and there could be a lot of us.”
A third said, “I don’t wanna . . . regret that I’m here. . . . I don’t want to say that that’s a mistake or something that someone needs to be terribly sorry about.”
Admittedly, illicit insemination poses troubling legal questions because foundational criminal and civil legal doctrines were never intended to address such conduct; thus, it isn’t adept at recognizing and vindicating the interests of either former patients or their children. But law is a product of human agency, and needs to reflect human interests and concerns, which now encompass such distressing circumstances as un-consented conceptions.
As technology outpaces the law, law must adapt accordingly. And the law should not permit a physician like Mortimer, whose livelihood and life-calling has been helping to conceive children and bring them into the world, to later declaim a duty to these very individuals.
Another option exists for protecting the interests of both former patients and their donor-conceived children: passing state legislation that allows physicians and medical professionals who use gametes or embryos in ways that conflict with progenitors’ consent.
Following the scandals at University at California, Irvine’s Center for Reproductive Health in 1995, California passed Cal. Pen. Code § 367g, which makes it unlawful for anyone to a) knowingly use or gametes or embryos for other purposes than those indicated on a written consent form signed by the person providing these materials; or b) implant these materials into someone who is not the person providing these materials without the provider’s signed written consent.
This year, former patients and donor-conceived children of Donald Cline have worked with Republican and Democratic state legislators to introduce two identical fertility fraud bills in the Indiana state legislature, House Bill 1264 and Senate Bill 174. This legislation makes it a criminal and civil offense for a physician to use their own gametes to treat patients without their consent, or to use donated human reproductive material with the donor’s consent. Prosecution or civil suit would have to be brought within five years of discovery of DNA data analysis linking the physician to such an offense, awareness of evidence sufficient to bring such an action, or the defendant physician’s confession.
The fate of these bills remains unknown, as the Indiana legislative session just began in January 2019.
Dr. Jody Lyneé Madeira is Professor of Law, Louis F. Neizer Faculty Fellow, and co-director of the Center for Law, Society & Culture at the Indiana University Maurer School of Law in Bloomington, Indiana. She is the author of Taking Baby Steps: How Patients Collaborate with Fertility Clinics (University of California Press, 2018) and Killing McVeigh: The Death Penalty and the Myth of Closure(New York University Press, 2012).