Doctors Can Legally Inseminate Patients with Their Own Sperm in Most States
When 36-year-old Matt White was 15, his biology teacher gave his class an assignment: Students were to go home, ask their parents what their blood type was, and then determine the probability of their own using Punnett squares.
When Matt approached his mother and father with the question, they had more to reveal than whether they were type O, A, B, or AB. “My parents sat me down and told me that my father was unable to have children and that they had to use an anonymous donor to have me,” he told Broadly. “I felt bad for my father and his inability to have kids, [but] I pretty much just continued on with life. I didn't think much about it. My dad was my dad, and my family was my family.”
Later in life, Matt and his mother, Liz White, occasionally drove by the Indianapolis fertility clinic where he was conceived. “She always pointed it out: ‘That's the building [where] I got pregnant with you,’” Matt said.
Thirty-six years ago, Liz sat in that building, the office of fertility doctor Donald Cline, waiting to receive an artificial insemination using an anonymous donor who she was told was a graduate resident. Cline walked her into the exam room, handed her a drape to cover herself with, shut the door, and disappeared for a few minutes. “I'm thinking, He's going into what's referred to as the magazine room to collect the donor's semen,” she said.
There was no donor in the other room. Instead, Cline left Liz’s exam room to masturbate, collecting his own semen to inseminate her.
From 1974 until at least 1987, Cline used his own semen for fertility treatments on his patients dozens of times while telling them he used anonymous donors, resulting in at least 50 children, including Liz’s son Matt, who share his DNA.
What Cline did was not illegal—not in the state of Indiana where he was based, nor in Texas, Idaho, Virginia, or Connecticut, states where strikingly similar fertility fraud cases have been raised, and where fertility fraud is protected in state laws that would otherwise logically cover the offense, like sexual assault and criminal deception.
“We were continually told by the prosecutors that there just aren't laws in place to charge him with anything,” says Matt.
“A state law for fraud should be able to catch this type of conduct, particularly after it was discovered,” says Jody L. Madeira, fertility fraud expert and professor of law at Indiana University Maurer School of Law. "But there are a lot of state laws out there that are really quirky.”
In her paper “Holding Physicians Accountable for Insemination Fraud,” Madeira outlines each of these laws and the loopholes which allow fertility fraud to exist on legal ground, like evidentiary issues, expired statutes of limitations, and antiquated sexual assault legislation. Under Indiana law, rape occurs only when “a person knowingly or intentionally engages in sexual intercourse or sexual conduct with another person who is compelled by force or imminent threat of force, unaware that the sexual conduct is occurring, or is incompetent and cannot consent to sexual conduct.” Madeira explains that the only potentially applicable provision here is that the patient is unaware that sexual conduct is occurring, but prosecutors on Cline’s case believed it would be too difficult to prove that Cline’s actions were sexually motivated without an admission from him saying so.
Prosecutors agreed that Cline could not be charged with anything related to fertility fraud. Instead, he was found guilty of two obstruction of justice charges for initially lying to investigators about whether or not he inseminated patients using his own sperm. His one-year jail sentence was suspended.
To date, the only state in the US with a law explicitly prohibiting fertility fraud is California, where, in 1995, couples learned that, unbeknownst to them, a fertility doctor was implanting their embryos inside of other patients.
The shock Matt White experienced from learning the truth about his conception was twofold: once when he found out that Cline was his biological father through the genetic testing service 23andMe, and again when he learned that what Cline had done was not illegal.
“There's nothing more intimate in a couple's life than becoming pregnant and having a child,” says Matt. In the early 2000s, while Matt and his wife were trying to conceive, they learned that, like his father, Matt was unable to have biological children. Instead, he and his wife relied on an anonymous donor through IVF for both of their two kids. “To think that someone would take advantage of that situation… You just assume that safeguards and procedures are [in place] and the ethics and morals of the doctors are correct,” he says.
In 2016, Matt and Liz made it their mission to get those safeguards written into law. With the support of other families affected by Cline’s actions, they shared their story with legislators and petitioned them to introduce a bill explicitly criminalizing fertility fraud. After years of working with senators to draft a thorough bill, SB 174 was approved in Indiana’s House and Senate last week. The bill includes a crucial detail that is unique to fertility fraud legislation: It allows for the doctor’s patient, the patient’s spouse, and the donor-conceived child to bring a civil action against a healthcare provider accused of fertility fraud. Currently, SB 174 is awaiting signature on Governor Eric Holcomb’s desk, and will likely become the first law outside of California specifically outlawing insemination from a source other than that to which the patient agreed.
“We were continually told by the prosecutors that there just aren't laws in place to charge him with anything."
Cline’s victims aren’t the only people directly affected by fertility fraud who are pushing the government to finally make it illegal. When Eve Wiley, a professional counselor from Texas, learned that her mother’s fertility doctor was also her biological father through 23andMe, she met with lawmakers to push a bill that would classify the act as sexual assault. The bill passed in the Texas Senate last week and awaits approval by a house committee.
The two fertility fraud bills poised to become law raise questions about how we categorize this act of deception. The Texas bill qualifies insemination using sperm from someone who the patient has not consented to as sexual assault—but the Indiana bill does not. Both bills, however, categorize fertility fraud as a felony.
According to Madeira, the Texas bill got it right. “The Texas bill really gets to the heart of what fertility fraud is: not only a doctor betraying the trust, but betraying the doctor-patient fiduciary relationship, inserting himself literally or some part of himself into the woman's bodily cavity, betraying her autonomy, and also inserting himself, his own genetic lineage into her family tree—against her will,” she explains. “And it's against her will because she was never given an opportunity to consent to it.”
Liz White agrees.“The [sexual assault] element is not that it's forceful in that scenario. It's an issue of trust and lies. We were totally lied to. That is still sexual,” she says. She and Matt considered pushing for a fertility fraud amendment under Indiana’s sexual assault law, but they figured categorizing the bill under fraud and deception would give it a better chance in the House and Senate. Still, Liz hopes that the state’s new committee on fertility laws, which is mandated under their current bill, will look into fertiity fraud as a form of sexual assault.
In the past five years, Madeira has tracked a sharp spike in fertility fraud cases nationwide, which she attributes to both the rise of direct-to-consumer genetic testing and a decreasing stigma towards infertility.
As the number of people who learn that they are victims of fertility fraud grows, she suspects that more people across the country will follow in the footsteps of Indiana and Texas to push for legislation against it. “Changes for state law tend to be brought by people who are angry that they weren't able to attain accountability,” she says, but we won’t actually know whether or not fertility fraud is illegal in other states until similar cases arise and lawsuits are filed that put states’ fraud and sexual assault laws to the test.
Both Indiana and Texas bills have been rare nearly unanimous bipartisan efforts. While it may be shocking that the criminalization of fertility fraud isn’t standard across the country, if these two states serve as any indication, those looking to bring forth future fertility fraud legislation will be able to find the resolutions they seek.