Fighting Fertility Fraud: New State Laws Seek to Stop Misuse of Sperm

New instances of fertility fraud in Indiana — and Texas — can be prosecuted under laws recently signed by the governors of both states. But they are the only states that make fertility fraud specifically illegal. Experts expect other states to follow suit.
by | July 3, 2019 AT 8:38 AM

By Elaine S. Povich

For Liz White, discovering that her fertility doctor had substituted his own sperm for what she thought came from an anonymous medical student donor was a punch to her gut.

"I felt like I was raped 15 times and didn’t know it,” she said in a telephone interview with Stateline from her home near Indianapolis, recalling the number of times she was inseminated.

She recounted that day in 2014 when her son Matt White, the product of the sperm donor, checked his DNA with an online kit and shortly thereafter discovered through social media postings that he looked a lot like the doctor’s other children.

What was almost worse for Liz White, now 66 and a clinical social worker, and her 37-year-old son was learning that there was then no specific law in Indiana against what her doctor did. The doctor, Donald Cline, was subsequently convicted of lying to prosecutors and obstructing justice when questioned about a consumer complaint alleging the doctor used his own sperm rather than an anonymous donor’s. He lost his medical license. About 50 people have come forward and claimed Cline as their biological father.

Now, new instances of fertility fraud in Indiana — and Texas — can be prosecuted under laws recently signed by the governors of both states. But they are the only states that make fertility fraud specifically illegal. Experts expect other states to follow suit.

“Two states have spoken, and I think many more will, especially if my hunch is right that there are many more doctors out there,” said Dov Fox, law professor at the University of San Diego and director of the Center for Health Law Policy & Bioethics.

Fox, author of “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law,” said in a phone interview that revelations in the cases of Cline and a Texas doctor that led to the Texas law “are just the tip of the iceberg.”

In the essay “Reproductive Negligence,” based on his research, Fox noted the unregulated nature of fertility treatment, particularly from about 1970 to 1990, before genetic testing was readily available. He wrote that in Great Britain, where fertility clinics were subject to stringent regulation during that period, the government had found that mistakes like destroying, contaminating and switching reproductive materials were “not exceptional.”

“Such errors are almost certainly more common in the United States, where these practices go virtually unregulated,” Fox wrote.

He added in a recent interview: “What was once suspected, or maybe hoped, that it was a one-off offense … is now, I think, being outed [as] what may have been standard practice [then].”

But the AIDS epidemic in the 1990s and beyond led to new U.S. Food and Drug Administration rules regarding use and testing of all human tissue, which likely reduced the misuse of reproductive material.

In Texas, Eve Wiley, 31, was trying about four years ago to figure out why her baby son was having so many medical issues. She had him genetically tested and found that the boy, who is now five years old, had an autoimmune disease (celiac disease) and that, unbeknownst to her, she had it too.

Through popular DNA sites, she located a couple of her genetic half-brothers, who believed they were related, and then a third, who said his uncle was Dr. Kim McMorries — the Dallas fertility doctor who treated Wiley’s mother, Margo Williams. A lightbulb went off. Wiley contacted McMorries, she said, who did not deny he was her father.

In a letter to Wiley that she shared with Stateline, McMorries wrote that he had donated his own sperm as a medical student, and retrieved that sample, along with others, to mix together and inseminate some of his patients, including Williams. He wrote that he did not identify any of the donors, as that was not allowed by medical protocol at the time.

“It is easy to look back and judge protocols/standards used 33 years ago and assume they were wrong in today’s environment,” McMorries wrote. “However, it was not wrong 33 years ago as that was acceptable practice for the times.”

McMorries and his son, also a physician, continue to practice in an OB-GYN clinic in Nacogdoches, Texas. He did not respond to Stateline requests for comment.

Wiley said in a phone interview from her home in Dallas that rather than try to go after the doctor legally, which was difficult because there was no law in Texas specifically forbidding the practice, she turned to the Texas legislature. “This was about legislation, not litigation,” she said.

“This is a perfect example of how the law is 30 years behind technology,” Wiley said. “What if I had dated a half-brother, or what if our children had met and married?” The next step, Wiley suggested, should be a national registry for sperm donors.

Fox said patients were desperate to become parents, and doctors knew that fresh sperm had a better chance of impregnating patients — and there was no technology that would have allowed patients to know who the genetic donor was.

“It’s not so hard to understand why many doctors, especially back in that time [provided their own sperm],” he said. “This kind of case sounds so jarring to our modern ears in an era of patient autonomy and informed consent. In the ’70s, it was a different time with respect to doctor-patient relationships.”

A 1988 report on artificial insemination by the federal Office of Technology Assessment said, without comment, that 2% of physicians reported using their own semen in artificial insemination procedures.

The doctors may have believed, Fox said, that “not only did they not do something wrong, they did something profoundly right.”

The Indiana law makes it a crime to misrepresent a medical procedure, device or drug, and specifically covers human reproductive material. Violations are a felony, and courts may award damages to a plaintiff. Gov. Eric Holcomb, a Republican, signed the bill in May. It took effect July 1.

A related California statute, enacted in 2011, says it is unlawful to use reproductive material for any purpose other than that stated on a consent form. But it doesn’t single out physicians like the Indiana and Texas laws do.

The Texas law, which defines using genetic material without disclosing the source as a form of sexual assault, also makes it a felony to implant human reproductive material without the patient’s consent. It allows for between six months and two years jail time and a fine of up to $10,000. It will take effect Sept. 1, having been signed by Gov. Greg Abbott, a Republican.

Both the Indiana and Texas laws apply only to offenses committed after the effective date.

“We thought this was worth doing,” said Indiana state Rep. Ed DeLaney, the Democrat who authored the bill that eventually passed. “We violated one of our rules: We don’t like to create new crimes. We were swimming against our normal stream, but this was an exception.”

The law, and the similar statute in Texas, were cases of the legal system catching up to science. Fertility clinics using donor sperm became popular in the late 1970s and 1980s, as reproductive science including in-vitro fertilization and other assisted reproductive methods grew more affordable. More recently, home testing of DNA using mail-away kits has boomed.

MIT Technology Review reported that by the beginning of this year, 26 million people had added their DNA to commercial databases. It was the use of one of those companies, 23andMe, that revealed to the offspring that Cline, the Indiana doctor, had secretly used his own sperm to treat infertile couples.

White remembered that she often pointed out the doctor’s clinic to her son while driving by it.

“That’s where I got pregnant,” she would say. When stories began to circulate about the doctor at that clinic, Matt White decided to get his DNA tested.

“Matt put it together, [remembering] that’s where I got pregnant, he looked at Cline’s children on Facebook and realized he looked like one son,” Liz White said. “I still have that pit in my stomach when I think about [it]. None of us ever dreamt that those things would happen.”

Sean Tipton, spokesman for the American Society of Reproductive Medicine, which represents fertility doctors, said he doesn’t expect new cases like the Cline and McMorries examples to emerge.

“We have not yet seen, and I hope we won’t, any cases like this since the early 2000s when the FDA instituted a new regulatory scheme governing the use of donated organs, tissues and reproductive tissue.”

Tipton’s group took no position on the Indiana and Texas laws. Should more state bills emerge, Tipton said his group will “look at it to make sure it doesn’t adversely affect the ability of our physicians to give care to patients now. We will take a look and evaluate it.”

In the wake of the AIDS and HIV crisis in the late 1990s, the FDA undertook a revamping of regulations involving person-to-person donation of body parts, blood and tissues. By 2005, it had issued three different sets of rules, consolidated them into one regulation, and included semen, embryos and similar material.

Tipton said in-home DNA kits reveal “a number of surprises about people’s ancestry. One of those, unfortunately, involves, in a few rare cases, physicians.

“At no time was it appropriate for a physician to use their own semen to inseminate a patient,” he said. “At no time was it appropriate for a physician to deceive a patient about whose semen they were using.”

Jody Madeira, a law professor at the Indiana University Maurer School of Law who advocated for the Indiana fertility fraud law, said states are undertaking these laws now because DNA kits have helped people discover how they came to be.

“I think there are people who are demanding these laws and that providers be held accountable,” Madeira, who is also co-director of the Center for Law, Society & Culture, said. “You can use these laws to make a statement to say these actions are not acceptable. It is unlikely that a provider would do this nowadays because of all the testing that is done.”

But, she said, a law underscores that the conduct is not acceptable.

“We will see more cases … that may lead to laws in other states,” she said. “This conduct isn’t acceptable, and patients have to be protected. We shouldn’t have to have a law; this should be common sense.”

Stateline | Nonpartisan, Nonprofit News Service of the Pew Charitable Trusts | editor@stateline.org  |  @pewstates