August 26, 2019

At-home DNA tests are revealing cases in which fertility doctors secretly used their own sperm to impregnate patients, leading some states to criminalize so-called "fertility fraud"—and sparking a debate over whether it should be considered a form of sexual assault.

How fertility fraud comes to light

Instances of fertility fraud have been discovered in 12 states, as well as in England, South Africa, Germany, and the Netherlands, according to Jody Madeira, a law professor at Indiana University who is following more than 20 cases of fertility fraud worldwide.

In one such case, Eve Wiley said she learned by taking an at-home DNA test that her biological father was not a sperm donor in California, as she had believed, but instead Kim McMorries, her mother's fertility doctor.

Wiley said she was devastated by the news. "You build your whole life on your genetic identity, and that's the foundation," she said. "But when those bottom bricks have been removed or altered, it can be devastating."

McMorries declined through his attorney to comment to the New York Times.

In one of the most widely covered cases of "fertility fraud," DNA testing revealed that the Indianapolis-area fertility specialist Donald Cline used his own sperm to impregnate at least three dozen women in the 1970s and 1980s, and at least 61 people claim he is their biological father.

Cline retired in 2009, admitted he lied to investigators, and pleaded guilty to two felony obstructions of justice charges. He surrendered his medical license and received a one-year suspended sentence. Cline's lawyer did not return the Times' calls for comment.

In the Netherlands, the Dutch Donor Child Foundation said DNA testing has confirmed that fertility specialist Jan Karbaat has fathered 56 children, born to women who visited his clinic. In 2009, Dutch authorities closed Karbaat's clinic, and he died in April 2017.

However, J.P. Vandervoodt, an attorney in Rotterdam, Denmark, where Karbaat's clinic was located, said, "Thirty years ago, people looked at things in very different ways. Karbaat could have been an anonymous donor—we don't know that. There was no registration system at the time."

Why do doctors commit fertility fraud?

As for why doctors would impregnate their patients, Madeira said, "I would bet a lot of these doctors had power reasons for doing this—mental health issues, narcissistic issues—or maybe they were attracted to certain women," she said.

Another possible explanation may be that the doctors thought it would increase their patients' odds of conception, Madeira said. Until the late 1980s, frozen sperm wasn't recommended for in vitro fertilization, meaning that physicians may not have had easy access to sperm when their patients needed it. "They could have self-justified their malfeasance in an era of 'doctor knows best,'" Madeira said.

In a letter to Wiley, McMorries said he mixed his sperm with that of other donors to increase Wiley's mother's chances of conception, and that laws regarding "donor anonymity" prevented him from telling her.

But Dov Fox, a bioethicist at the University of San Diego called the practice of impregnating patients with doctor's own sperm "gross,  … shocking, [and] shameful." He added, "The number of doctors sounds less like a few bad apples and more like a generalized practice of deception, largely hidden until recently by a mix of low-tech and high stigma."

Should fertility fraud be classified as sexual assault?

Three states have passed laws criminalizing fertility fraud, including Texas, which in June passed a law classifying fertility fraud as a form of sexual assault. The law requires all found guilty to register as sex offenders.

However, some experts believe classifying fertility fraud as sexual assault is too extreme. Judith Daar, dean of the Chase College of Law at Northern Kentucky University, said, "Sexual assault is a step too far. Using that language, and imposing the ramifications that assault imposes, is highly problematic and more harmful than helpful."

The Texas law applies regardless of whether a heath care provider uses his own sperm or the sperm of an unauthorized donor, and Daar worried that a doctor or nurse could be convicted of sexual assault as a result of a simple mistake.

"If a physician is rushed and inattentive, and grabs the wrong vial, a jury might find that the physician knew or should have known that the material was not what the patient selected," Daar said, adding that she fears fertility doctors may stop practicing in Texas as a result of the law.

However, state representative Stephanie Klick (R) said she believes fertility fraud does constitute sexual assault. "There's a physical aspect to it—there is a medical device that is being used to penetrate these women to deliver the genetic material," she said. "I equate it with rape, because there's no consent" (Mroz, New York Times, 8/21; Owens, "Vitals," Axios, 8/22; Park, Becker's Health IT & CIO Report, 8/22).

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