Holding Physicians Accountable for Fertility Fraud
forthcoming Columbia Journal of Gender and Law (Spring 2020)
54 Pages Posted: 29 Nov 2018 Last revised: 15 May 2019
Date Written: January 28, 2019
Recently, several cases have been filed in North America and Europe alleging that fertility physicians inseminated former patients with their own sperm, only to have this conduct come to light decades later when their unsuspecting adult children use direct-to-consumer genetic tests only to learn that they are not biologically related to their fathers and often have multiple half-siblings. For instance, Donald Cline of Indianapolis, Indiana, has over 50 donor-conceived children, with more continuing to come forward. Although these cases induce gut-level disgust, it has thus far proven difficult to hold these physicians legally accountable because their conduct seems to fall within gaps in existing civil and criminal laws. This article explores the legal contours of fertility fraud cases involving illicit physician inseminations, explaining why it falls through gaps in existing criminal and civil law, and why it is essential to take whatever measures are necessary to hold physicians accountable. Part I discusses six physicians who have thus far faced criminal or civil charges for their conduct in North America and analyzes why it is difficult to hold physicians criminally and civilly liable under existing law, including excerpts from an interview with the prosecutor in the Cline case. Part II discusses how fertility fraud violates various ethical and legal interests of female and male former patients and their donor-conceived children. Finally, Part III assesses how Cline’s illicit inseminations affected parents and progeny, how they learn of these new genetic connections, what they think of Cline and his motivations, how they derive support from one another, their reactions to criminal proceedings against Cline, and why they regard a legislative “fertility fraud” bill as an ideal outcome. This article concludes by discussing efforts to pass a fertility fraud bill in Indiana.
Keywords: insemination fraud, fertility fraud, artificial insemination, informed consent, Donald Cline, Norman Barwin, Gerald Mortimer
Suggested Citation: Suggested Citation