Fertility Fraud: Major Developments in Texas, Idaho, and Indiana

By Jody Lyneé Madeira

Spring of 2019 brought flowers, showers…and many updates on the “fertility fraud” front.

Perhaps the biggest developments are on the legislative front. On May 5, Indiana Governor Eric Holcomb signed Senate Bill 174 into law, creating civil and criminal causes of action for fertility fraud for former patients and their offspring (and donors whose gametes were used in an unconsented-to manner).

Plaintiffs who sue in tort can be reimbursed for the costs of the fertility procedure and $10,000 in damages. The act makes it a level 6 felony to make a misrepresentation involving human reproductive material and a medical procedure, medical device, or drug.

The new law takes effect on July 1. Shortly thereafter, on May 17, the Texas House passed Senate Bill 1259, which would make it a felony for a health care provider to inseminate a patient using human reproductive material from a donor to which the other person has not given express consent. The bill, which had previously passed through the Texas Senate, was signed by Governor Greg Abbot on June 4.

Significantly, each bill was unanimously approved by both chambers of its state legislature.

Another key development is the filing of additional documents in the Idaho fertility fraud case, Mortimer v. Rowlette. In a prior ruling, the court had dismissed the doctor-conceived child, Kelli, from the suit, finding that she could not bring a malpractice action because she was not Rowlette’s patient before she was conceived (see here and here for analysis). Defendant Dr. Gerald Mortimer filed a Motion for Summary Judgment on April 5, arguing that the plaintiffs’ malpractice suit is essentially a wrongful pregnancy claim which must fail because there was no harm as their daughter, Kelli, was wanted and healthy.

Mortimer is apparently trying to position this case within a particular fact pattern; courts have consistently ruled that the birth of a healthy child from negligently provided sperm is not a compensable harm, even if the offspring do not resemble the parents. But the facts of this case are easily distinguishable from those in which clinics don’t follow proper procedures to ensure consent (such as Pressil v. Gibson, where a woman posing as the plaintiff’s wife asked a fertility center to be inseminated with sperm she had secretly retrieved from a used condom).

For one thing, the injury doesn’t stem from Kelli’s “intended genetic makeup,” but the fact that Mortimer intentionally used his own sperm, physically violating Sally Ashby. Moreover, Mortimer alleges that the plaintiffs cannot even seek the cost of the insemination procedure itself, claiming that the procedure actually brought them “incalculable benefit.” In another filing (a response to plaintiffs’ complaint, which was amended to assert a punitive damages claim), Mortimer contends that, while he “exercised poor judgment,” he “did so with good intentions,” and punitive damages are not available against “well-meaning tortfeasors.”

Finally, in alleging that there usually can be no claim for emotional distress without physical injury, Mortimer never addresses the issue of whether Sally Ashby was physically violated by the insemination procedure, and merely asserts that the negligence was not “especially likely” to cause emotional distress. Instead, Mortimer claims, the plaintiffs’ distress is rooted not in the fact that he is Kelli’s biological father, but in the fact that Kelli was not Howard Fowler’s biological daughter. But the plaintiffs knew that there was a chance that the biological father would be the donor whose sperm was mixed with Fowler’s; what they didn’t know is that that donor was Mortimer. And as a final straw, Mortimer claims that it would have been impossible for him to foresee the plaintiffs’ emotional distress in the event that his conduct was discovered, since this discovery occurred through the internet and DNA matching — “incomprehensible” technologies at the time.

The clinic with which Mortimer practiced, Obstetrics and Gynecology Associates of Idaho Falls, also sought summary judgment, claiming that they are not liable Mortimer did not inform anyone at the practice of these illicit inseminations. While they argue that Mortimer’s inseminations were motivated “out of his concern for his patients and his personal desire to help his patients,” the clinic did concede that these acts were “a violation of the applicable standard of health care.”

In their reply to Mortimer’s Motion for Summary Judgment, plaintiffs reject the wrongful pregnancy label and contend that this is a case of “medical negligence” because any other result would “reward[] physicians who violate their patients’ bodily autonomy and trust.” The plaintiffs argue that their injuries do not stem from Kelli’s existence, but from “the manner in which Mortimer provided ‘medical care’ and the resulting emotional trauma.” This is allegedly supported by notes in the chart, which never indicated that donor sperm was involved, but state that only Fowler’s sperm was used.

The court has yet to rule on the defendants’ Motions to Dismiss.

Dr. Jody Lyneé Madeira is a Professor of Law and Louis F. Niezer Faculty Fellow, as well as the Co-Director of the Center for Law, Society & Culture at Indiana University Maurer School of Law.