Conception Deception: Fertility Fraud and Federal Propositions to Protect Victims

by Madeline Brown, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Imagine taking a DNA test, hoping to learn more about your family tree, and discovering that your biological father is your mother’s OBGYN. On top of that, you slowly uncover that you have almost 100 (known) half-siblings, many of whom live in or around your own community.¹ The detrimental effects of such a startling discovery are numerous and, for most of us, unimaginable.

Jacoba Ballard, featured in the 2022 Netflix documentary “Our Father,” shared her experience uncovering the truth about her genetics and her family when her DNA test revealed that Dr. Donald Cline, her mother’s fertility doctor, was her biological father.² Motivated by the confusion and pain she felt following this revelation, Jacoba assumed the role of an advocate for her half-siblings and thousands of other victims of similar injustices.³ The documentary and the increased awareness of fertility fraud following the rise of direct-to-consumer DNA testing, caught the attention of politicians like Stephanie Bice, Republican Representative for the Fifth District of Oklahoma.⁴ Bice, in response, proposed the Protecting Families from Fertility Fraud Act of 2022 and, following the failing of the first bill, the Protecting Families from Fertility Fraud Act of 2023, seeking to impose federal protections for individuals undergoing artificial insemination and other forms of reproductive assistance.⁵ Another bill, proposed by Republican Representative for the Ninth District of Michigan, Lisa McClain – the Fighting Fertility Fraud Act of 2023 – similarly seeks to address the widespread issue of fertility fraud by assuming a slightly different legal approach.⁶

This article analyzes the nationwide and state-specific responses to fertility fraud, including relevant pending federal legislation, while calling for increased attention to the injustices experienced by victims of this incredibly invasive practice. Part II provides background on the Protecting Families from Fertility Fraud and Fighting Fertility Fraud Acts of 2023, as well as relevant state legislation.⁷ Part III analyzes and calls for general support of these bills, while identifying the bills’ strengths and areas for improvement. Part IV concludes by calling for increased awareness and discussion of fertility fraud, alongside the adoption of state and federal laws to protect individuals undergoing assisted reproductive procedures, children born following fraudulent fertility practices, and donors of genetic reproductive material.

II. Background

A. What Is Fertility Fraud?

Fertility fraud can take the form of many abuses and misuses of genetic material and assisted reproductive technology. One particular type of fertility fraud has recently attracted the attention of the legal field and the media: the practice of male fertility doctors using their own sperm samples during artificial insemination procedures.⁸ Note, however, that fertility fraud also exists in the theft and misuse of donor eggs and embryos created via in vitro fertilization, when donors of genetic reproductive material are not appropriately screened, or when a donor’s sample is used in excess of the number of times disclosed to the patient.⁹ Often, medical practitioners engaging in fertility fraud take advantage of patients’ sense of desperation to have a child in order to fulfill their own desires for power and control.¹⁰

The recent rise of awareness surrounding the alarming frequency of fertility fraud has led to the proposal of state and federal laws to prohibit this invasive form of deception and to protect victims. Two such proposed federal statutes are the Protecting Families from Fertility Fraud Act and the Fighting Fertility Fraud Act.¹¹

B. The Protecting Families from Fertility Fraud Act

Introduced to the House of Representatives on January 24th of this year, the Protecting Families from Fertility Fraud Act of 2023 represents the second iteration of Congresswoman Stephanie Bice’s proposed fertility fraud bill.¹² This proposed federal statute would amend Chapter 109(A), Title 18 of the United States Code (USC) – the chapter of the United States’ criminal code addressing sexual abuse – by adding “Section 2249” to criminalize abuse of assisted reproductive technology, including artificial insemination.¹³ Behavior criminalized by the statute would include “knowingly misrepresent[ing] the nature or source of DNA used in assisted reproductive technology….”¹⁴ A violation of this federal statute would result in a fine, imprisonment for no more than ten years, or both.¹⁵

A previous iteration of this proposed statute existed in 2022, similarly introduced by Congresswoman Bice.¹⁶ The preceding version did not include a statute of limitations for violations of the proposed law.¹⁷ The 2023 version of the bill, however, includes a new provision: in cases where DNA testing leads to the identification of an offender, there is no statute of limitations that would preclude prosecution until ten years after the identification of the offender.¹⁸

The Protecting Families from Fertility Fraud Act is unique compared to other pieces of legislation in this space: it proposes to add the new “Section 2249” to the list of racketeering technologies under Title 18, Section 1961(1) of the USC.¹⁹ In other words, the new fertility fraud crime would be added as a “predicate offense” to the Racketeer Influenced and Corrupt Organizations Act, commonly referred to as “RICO.”²⁰

To date, the bill has forty-four co-sponsors in addition to its primary sponsor, Congresswoman Bice.²¹ Somewhat uniquely, these co-sponsors come from both sides of the proverbial “aisle”: twenty-five co-sponsors are Republican Representatives, while nineteen are Democrats. ²² Note that the 2022 version of this bill had only twelve co-sponsors.²³

C. The Fighting Fertility Fraud Act

A bill with fewer co-sponsors but a similarly promising proposal, the Fighting Fertility Fraud Act was proposed by Republican Representative Lisa McClain of Michigan on May 25, 2023.²⁴ This proposed federal statute would amend Chapter 47, Title 18 of the USC – the chapter addressing fraud and false statements – by adding “Section 1041” to prohibit health care professionals from providing false or misleading information to patients regarding assisted reproduction.²⁵ Targeted specifically at medical professionals, behavior criminalized by the statute would include the provision of false or misleading information regarding human reproductive material used for assisted reproduction, including the identifying information or medical history of a sperm or egg donor.²⁶ Similar to the Protecting Families from Fertility Fraud Act, violation of this federal statute would result in a fine, imprisonment for no more than ten years, or both.²⁷

Importantly, this bill specifies that a medical professional cannot provide as a defense to a violation under the statute that the patient consented in writing to the use of human reproductive material from an anonymous donor.²⁸ Further, the bill states that a cause of action may be brought for a violation of the statute against a medical professional, healthcare facility, or sperm or egg donor by an individual born as a result of such fraudulent practices, a patient or the spouse of a patient who conceived via fertility fraud, or by a donor, supposedly in situations where the intended use of their genetic reproductive material was misrepresented.²⁹ In addition to criminal penalties, plaintiffs can recover compensatory and punitive damages, as well as injunctive relief via this cause of action.³⁰

Finally, an action brought under this proposed statute must be brought within five years after the date on which the violation was discovered by an individual eligible to sue for relief, thus providing five fewer years to bring an action than the Protecting Families from Fertility Fraud Act.³¹ The bill currently has just four co-sponsors – all Democratic Representatives – in addition to its primary sponsor, Representative Lisa McClain.³²

D. State Efforts to Combat Fertility Fraud

To date, only twelve states have enacted any sort of legislation addressing fertility fraud.³³ Five other states have proposed statutes currently pending within their legislatures.³⁴ Most of the states that adopted relevant legislation have done so in the past three years.³⁵ The exception is California, which added language to its Penal Code in 1996, making it a crime to use genetic reproductive material in ways other than those indicated by the donor’s consent form or to implant reproductive material without written consent of the recipient.³⁶ This demonstrates that, while the language of the California statute is certainly lacking based on present-day knowledge of the various manifestations of fertility fraud, at least one state contemplated fertility fraud as a crime over two decades ago.

Other states, including Ohio, recently passed legislation criminalizing many actions related to fertility fraud, while providing victims with opportunities for relief via civil causes of action.³⁷ For example, Ohio’s Senate Bill 288, as enacted on January 3, 2023, prohibits health care professionals from using genetic reproductive material from any person while performing an assisted reproductive procedure if that patient has not expressly consented to the use of their specimen.³⁸ The statute further criminalizes misrepresentations to patients of any material information about a reproductive material donor’s profile.³⁹ The penalty for such a violation ranges from a second- to a third-degree felony, depending on the circumstances of the offense.⁴⁰ The statute also provides a cause for civil action, allowing plaintiffs to recover damages for an assisted reproductive procedure performed recklessly and without consent.⁴¹ Under the statute, both the patient and the patient’s spouse can recover, as well as any child born from the fraudulent procedure. A successful plaintiff is entitled to compensatory and punitive or liquidated damages of up to $10,000 – a miniscule amount for such an egregious form of fraud.⁴²

III. Discussion

There is a critical need for federal legislation addressing fertility fraud and its often tragic effects on victims, including patients and their partners, individuals born as a result of fraudulent practices, and donors of genetic reproductive material who are provided with false information regarding how their specimens will be utilized.⁴³ As demonstrated by failed attempts to hold Dr. Donald Cline accountable for the harm he caused to countless families and individuals in Indiana, few statutes include the types of crimes committed and injuries caused by fertility fraud.⁴⁴ The Indiana Attorney General’s Office, among others, initially dismissed the complaints of Jacoba Ballard and the other “Cline siblings.”⁴⁵ Although injustice had clearly been done, no statute provided legal protection from Dr. Cline’s behavior.⁴⁶ Under the existing law at the time, the only way Dr. Cline could be held criminally accountable was by convicting him of an obstruction of justice resulting from his lying about using his own sperm samples during the government’s investigation of his behavior.⁴⁷ As a result of this failure of the legislature and the legal system to protect victims like Jacoba Ballard, Dr. Cline was convicted of a class 6 felony and served no jail time for his invasive, fraudulent actions.⁴⁸ This only begins to demonstrate the urgent need for additional state and federal protections for victims of fertility fraud.

Additional policy arguments exist for the enactment of legislation like the Protecting Families from Fertility Fraud and Fighting Fertility Fraud Acts. Beyond the obviously harmful effects on individuals and families victimized by fertility doctors, a societal interest exists in the donation of genetic reproductive material by sperm and egg donors and in protecting the integrity of assisted reproductive technologies. With the national recognition of marriage equality and the rise in accessibility to assisted reproductive technologies by the general population, states must protect the ability for individuals to utilize such technologies in the interest of fulfilling their desires of having children. Family continues to be a foundational aspect of society and is supported by the development and growth of assisted reproductive technologies.

As demonstrated by the Protecting Families from Fertility Fraud Act, bipartisan support of such legislation exists, with representatives of all political viewpoints interested in providing increased protection for fertility fraud victims.⁴⁹ The question moving forward is what a successful piece of legislation in this area must include and how the law can best be utilized to protect and obtain relief for victims of fertility doctors like Dr. Cline.⁵⁰

Both pieces of proposed federal legislation, discussed above, have features making them particularly appealing to combat fertility fraud, with some potential weaknesses for the legislature to consider, or that may require future interpretation by the judiciary should either bill pass. While both bills emphasize transparency in assisted reproductive procedures, including artificial insemination, bolstering protection of patients from fraud, misrepresentation, and misleading information provided before, during, or after the procedure, they specifically address fertility fraud in slightly different ways.⁵¹

The Protecting Families from Fertility Fraud Act provides some additional, unique features to better protect patients.⁵² First, the bill effectively ensures that claims against offenders can be brought at any time, as long as such a claim is brought within ten years of the identification of the offender.⁵³ This provides broad, long-term protection that not only enables those suffering harm from fertility fraud to seek justice, but also further discourages medical providers from conducting prohibited acts. Under such a broad statute of limitations, health care providers may be held accountable under the statute at virtually any time, assuming individuals will continue to identify offenders via the increased utilization of direct-to-consumer DNA testing, and as information about fertility fraud continues to spread via the internet and social media.⁵⁴ This statute of limitations may also encourage victims to gather additional evidence, including attempting to uncover more affected individuals, prior to seeking redress under the statute.⁵⁵ As in the case of Dr. Cline, thanks in large part to the efforts of Jacoba Ballard, the legal system is now aware that at least ninety-four children were born because of Cline’s fraudulent practices, enabling plaintiffs and prosecutors to emphasize the widespread impact of his behavior.⁵⁶

Further, the Protecting Families from Fertility Fraud Act’s addition of abuse of assisted reproductive technologies to the list of racketeering activities under RICO provides additional opportunities for legal redress relating to offensive criminal behavior under the statute.⁵⁷ This expands the opportunities available for violators to be held responsible.

Similarly, the Fighting Fertility Fraud Act has a particularly unique feature that is crucial for fully protecting victims: the legislation provides opportunities for relief by not only patients, but also individuals conceived as a result of fertility fraud and donors who were misinformed regarding the use of their donated reproductive material.⁵⁸ Further, the bill’s specification that a patient’s consent to an assisted reproductive procedure cannot be a defense to the provision of misleading information to that patient or fraudulent acts resulting in illicit artificial insemination provides another crucial piece of protection for patients.⁵⁹ The existence of verified consent to artificial insemination and other assisted reproductive procedures has previously been utilized as a loophole to protect perpetrators from legal liability.⁶⁰

While each of these bills has some appealing features, it would be remiss to not acknowledge their potential deficiencies, perhaps encouraging the legislature to consider improvement of the bills or the infrastructure intended to support them before moving to pass them. First, as with any new criminal statute, cases involving misrepresentation of DNA sources or fraudulent use of genetic reproductive material may require extensive investigative and prosecutorial resources, further burdening the legal system. The legislature must ensure that additional resources are made available to effectively enforce either or both statutes, should they be enacted into law.

Another concern is that these bills may be too narrow in scope. While illicit insemination using sperm from an inappropriate source – primarily the fertility doctor himself – is a concerning form of fertility fraud, this repugnant type of fraud is not the only one of its kind.⁶¹ For example, fertility fraud may exist in the form of a doctor’s continuing relationships with his own biological children conceived by fraudulent assisted reproductive practices. Dr. Cline, for example, conducted gynecological exams on the daughters of some of his own fertility patients, effectively administering such private medical examinations on his own children.⁶² Unfortunately, unsuspecting victims of such intimate violations may not be sufficiently protected under the current proposed statutes.

While it is apparent that federal legislation addressing abuses of assisted reproductive technology and genetic reproductive material is necessary to better protect victims, the Protecting Families from Fertility Fraud Act has only an estimated 3% chance of enactment.⁶³ Similarly, the Fighting Fertility Fraud Act has an estimated 1% chance of enactment.⁶⁴ These predictions are based on several factors, including that only about 2% of bills were enacted between 2021 and 2023.⁶⁵ Politicians must take action to continue to propose fertility fraud legislation, especially should both bills fail, to better protect individuals involved in or affected by fraudulent assisted reproductive procedures in the United States.

IV. Conclusion

In conclusion, the legislature has taken steps in the right direction by recognizing the need for federal legislation addressing fertility fraud, thus resulting in the introduction of the Protecting Families from Fertility Fraud Act and the Fighting Fertility Fraud Act.⁶⁶ Each of these bills contains provisions that would make great strides toward providing protection for victims, including not only patients directly victimized by fertility fraud practices, but also the children born as a result, and the sperm and eggs donors who receive misinformation about the use of their genetic reproductive material.

While the legislature should strongly consider the adoption of each of these bills, it should also ensure that ample investigatory and judicial resources are provided to adjudicate cases brought under either of these statutes. Representatives must also ensure that the bills are not too narrow to neglect victims injured by fertility fraud in ways other than through illicit artificial insemination. Finally, states should continue to adopt criminal and civil statutes providing additional protections for victims of fertility fraud at the state level. In a space such as this, where the victims and impacts of this intimate form of fraud are still being uncovered, victims must have broad access to justice and relief at both the state and federal level.

Cover Photo generated by DALLE 2 AI System

Madeline Brown

Madeline Brown is a 2L at the University of Cincinnati College of Law and an Associate Member of Law Review. Prior to law school, she received a B.B.A. in Finance and a B.A. in International Relations from the College of William & Mary and worked in life sciences compliance consulting. In addition to her involvement in Law Review, Madeline is the President of the American Constitution Society at UC Law and is passionate about public policy and non-profit work.

References

1
Our Father (Blumhouse Productions 2002).
2
Id.
3
Id.
4
Press Release, Stephanie Bice, Representative, Bice, Sherrill to Introduce Bill in Response to “Our Father” Documentary (Aug. 16, 2022) https://bice.house.gov/media/press-releases/bice-sherrill-introduce-bill-response-our-father-documentary.
5
Id.; see also Protecting Families from Fertility Fraud Act, H.R. Res. 8600, 117^th Cong. (2022); Protecting Families from Fertility Fraud Act, H.R. Res. 451, 118^th Cong. (2023).
6
Fighting Fertility Fraud Act, H.R. 3710, 118^th Cong.(2023).
7
Protecting Families from Fertility Fraud Act, H.R. 8600, 117^th Cong.(2022); Protecting Families from Fertility Fraud Act, H.R. 451, 118^th Cong. (2023).
8
Fertility Fraud: What You Should Know, Stein Law Offices https://www.steinlawoffices.com/fertility-fraud-what-you-should-know/.
9
Id.
10
Id.; see also Our Father (Blumhouse Productions 2002).
11
Fighting Fertility Fraud Act, H.R. 3710, 118^th Cong. (2023); Protecting Families from Fertility Fraud Act, H.R. 451, 118^th Cong. (2023).
12
Protecting Families from Fertility Fraud Act, H.R. 8600, 117^th Cong. (2022); Protecting Families from Fertility Fraud Act, H.R. 451, 118^th Cong. (2023).
13
Protecting Families from Fertility Fraud Act, H.R. 451, 118^th Cong. (2023).
14
Id.
15
Id.
16
Protecting Families from Fertility Fraud Act, H.R. 8600, 117^th Cong. (2022).
17
Id.
18
Protecting Families from Fertility Fraud Act, H.R. 451, 118^th Cong. (2023).
19
Id.; see also Press Release, Stephanie Bice, Representative, Bice, Sherrill to Introduce Bill in Response to “Our Father” Documentary (Aug. 16, 2022) https://bice.house.gov/media/press-releases/bice-sherrill-introduce-bill-response-our-father-documentary.
20
Id.
21
Protecting Families from Fertility Fraud Act, H.R. 451, 118th Cong. (2023).
22
Govtrack.us, H.R. 451: Protecting Families from Fertility Fraud Act of 2023, Govtrack.us (2023) https://www.govtrack.us/congress/bills/118/hr451/cosponsors; see also Press Release, Joseph Morelle, Representative, Congressman Joe Morelle Acts to Combat Fertility Fraud, (Feb. 9, 2023) https://morelle.house.gov/media/press-releases/congressman-joe-morelle-acts-combat-fertility-fraud#:~:text=Congressman%20Morelle%20co%2Dsponsored%20the,crime%20as%20a%20federal%20offense (press release discussing Democratic Congressman Joe Morelle’s co-sponsorship of the Protecting Families from Fertility Fraud Act).
23
Congress.gov, H.R.8600 – Protecting Families from Fertility Fraud Act of 2022, Cosponsors, Congress.gov https://www.congress.gov/bill/117th-congress/house-bill/8600/cosponsors?s=1&r=5&q=%7B%22search%22%3A%5B%22Protecting+Families+from+Fertility+Fraud+Act+of+2022%22%5D%7D. Note that it may be reasonable to conclude that the 2023 version of the bill has attracted additional co-sponsors due to its inclusion of a statute of limitations provision that did not exist in the previous version of the bill.
24
Fighting Fertility Fraud Act, H.R. 3710, 118th Cong. (2023).
25
Id.
26
Id.
27
Id.; see also Protecting Families from Fertility Fraud Act, H.R. 451, 118th Cong. (2023).
28
Fighting Fertility Fraud Act, H.R. 3710, 118th Cong. (2023).
29
Id.
30
Id
31
Id.; see also Protecting Families from Fertility Fraud Act, H.R. 451, 118th Cong. (2023).
32
Fighting Fertility Fraud Act, H.R. 3710, 118th Cong. (2023).
33
Federal Legislation in Assisted Reproduction, Right to Know (2023) https://righttoknow.us/fertility-fraud-laws/.
34
Id.
35
Id.
36
Cal. Penal Code§367(g) (2011) (provisions originally added in 1996).
37
Federal Legislation in Assisted Reproduction, Right to Know (2023) https://righttoknow.us/fertility-fraud-laws/.
38
S.B. 288, 135th Gen. Assemb. (Ohio 2023); see also The Ohio Legislature, Senate Bill 288 Documents, The Ohio Legislature, https://www.legislature.ohio.gov/legislation/134/sb288/documents.
39
Id.
40
Id.
41
Id.
42
Id.
43
Fertility Fraud: What You Should Know, Stein Law Offices https://www.steinlawoffices.com/fertility-fraud-what-you-should-know/.
44
Our Father, supra note 1; see also Jody A. Madeira, Understanding Illicit Insemination and Fertility Fraud from Patient Experience to Legal Reform, 39 Colum. J. Gender & L. 110, 113 (2020).
45
Our Father, supra note 1.
46
Id.
47
Id.
48
Id. Note that, fortunately, Dr. Cline was held civilly liable via multiple malpractice suits filed by the families affected by his fraudulent actions. See Izzy Karpinski, Dr. Donald Cline pays $1.35M in donor siblings’ civil case settlements: What we uncovered, Fox 59 (May 18, 2022) https://fox59.com/morning-news/angela-answers/dr-donald-cline-pays-1-35m-in-donor-siblings-civil-case-settlements-what-we-uncovered.
49
Protecting Families from Fertility Fraud Act, H.R. 451, 118th Cong. (2023); Fighting Fertility Fraud Act, H.R. 3710, 118th Cong. (2023).
50
Our Father, supra note 1.
51
Id.
52
Protecting Families from Fertility Fraud Act, H.R. 451, 118th Cong. (2023).
53
Id.
54
Rob Stein, Results of At-Home Genetic Tests for Health Can Be Hard To Interpret, N. Pub. Radio (June 18, 2018) https://www.npr.org/sections/health-shots/2018/06/18/609750963/results-of-at-home-genetic-tests-for-health-can-be-hard-to-interpret#:~:text=Now%2C%20more%20people%20are%20getting,inexpensive%20tests%20directly%20to%20consumers
55
The addition of the statute of limitations provision to the 2023 version of the Act, serving as the primary update from the bill’s previous iteration, may suggest that this addition will make the Act more appealing to legislators. This is further supported by the fact that the current version of the bill has 32 more co-sponsors than the 2022 bill. See Congress.gov, H.R.8600 – Protecting Families from Fertility Fraud Act of 2022, Cosponsors, Congress.gov https://www.congress.gov/bill/117th-congress/house-bill/8600/cosponsors?s=1&r=5&q=%7B%22search%22%3A%5B%22Protecting+Families+from+Fertility+Fraud+Act+of+2022%22%5D%7D; Govtrack.us, H.R. 451: Protecting Families from Fertility Fraud Act of 2023, Govtrack.us (2023) https://www.govtrack.us/congress/bills/118/hr451/cosponsors.
56
Our Father, supra note 1.
57
Id.
58
Fighting Fertility Fraud Act, H.R. 3710, 118th Cong. (2023).
59
Id.
60
Jody A. Madeira, Understanding Illicit Insemination and Fertility Fraud from Patient Experience to Legal Reform, 39 Colum. J. Gender & L. 110, 113 (2020).
61
Fertility Fraud: What You Should Know, Stein Law Offices https://www.steinlawoffices.com/fertility-fraud-what-you-should-know/.
62
Our Father, supra note 1.
63
Govtrack.us, H.R. 451: Protecting Families from Fertility Fraud Act, Govtrack.us (2023) https://www.govtrack.us/congress/bills/118/hr451. The prediction that the Protecting Families from Fertility Fraud Act has a 3% chance of being enacted is positively impacted by the fact that the bill was introduced in the first 90 days of the Congress and that the sponsor is in the majority party with at least one-third of the bill’s sponsors from the minority party. The prediction is negatively impacted by the fact that at least two co-sponsors serve on a committee to which the bill has been referred, the bill was referred to the House Committee on the Judiciary, and the bill is a re-introduction of H.R. 8600, the Protecting Families from Fertility Fraud Act of 2022.
64
Govtrack.us, H.R. 3710: Fighting Fertility Fraud Act of 2023, Govtrack.us (2023) https://www.govtrack.us/congress/bills/118/hr3710. The prediction that the Fighting Fertility Fraud Act has a 1% chance of being enacted is positively impacted by the fact that the bill was introduced in the first year of the Congress, and negatively impacted by the fact that the bill was referred to the House Committee on the Judiciary.
65
Id.
66
Fighting Fertility Fraud Act, H.R. 3710, 118th Cong. (2023); Protecting Families from Fertility Fraud Act, H.R. 451, 118th Cong. (2023).