The Fertility Fraud Victims From ‘Our Father’ Are Paving New Legal Ground

It's been challenging to criminally prosecute doctors who inseminated patients with their own sperm—but that could soon change.

By Gabrielle Bruney | May 11, 2022 | 7:08pm

Justice Politics

The Fertility Fraud Victims From ‘Our Father’ Are Paving New Legal Ground

Dr. Jody Madiera and Jacoba Ballard Image:Netflix

When Liz White learned that fertility doctor Donald Cline had inseminated her with his own sperm, her first words were, “I was raped fifteen times and I didn’t even know it,” she says in the Netflix documentary Our Father.

“The truth is that, as Cline was closing the door, and I’m undressing and putting my feet in the stirrups, getting ready for him to bring in the donor’s sperm, he was in some other place in the office, ejaculating,” she says in the film, which debuted Wednesday. “He was placing, then, his semen into some kind of syringe, and then he’s got to place that syringe at the base of my cervix. The fact that he was still on an endocrine high from having the ejaculation has no place in a medical setting.”

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However, when Cline appeared in an Indiana court in 2017 to address charges from his alleged widespread “fertility fraud,” as the practice of doctors surreptitiously using their own sperm while leading patients to believe that they were impregnated by their partner or a donor is known, he wasn’t facing charges for assault, battery, or the deception of patients and their families. Instead, he pled guilty to obstruction of justice—a crime against the state of Indiana, not the women he was accused of violating, the men who believed for decades that they were biologically related to their children, or the dozens of people who learned that Cline had fathered them.

He isn’t alone. Across the country, more than 50 doctors have been accused of lying to patients and fathering children using their own genetic material. Fertility fraud even served as the subject of an early documentary, HBO’s 2020 film Baby God. But Indiana University Maurer School of Law School Professor Jody Madeira, who helped write the state’s Cline case-inspired 2019 fertility fraud law, told Jezebel that, despite recent successful civil lawsuits, there’s been “no criminal accountability.” Fertility fraud often falls through the cracks in existing US law—but victims-turned-activists across the country are helping to create a new legal framework for handling these cases.

With at least 94 biological children discovered so far, Cline holds the grim distinction of being the most prolific fertility fraud doctor yet. His deceptions were uncovered by the children he fathered, including Jacoba Ballard, who’s also featured in Our Father and who has become an advocate for fertility fraud legislation. During her childhood, Ballard’s parents told her the story Cline had told them: She’d been fathered with sperm from an anonymous door, who would only be allowed to contribute to a maximum of two other children. So, when she received her ancestry test results in 2014, she was surprised to find that she’d already been connected with seven half-siblings. The research the group of biologically-related strangers embarked upon led them to their mothers’ former doctor: Cline. Now, she’s regularly tasked with telling newly discovered siblings the life-altering news.

“We’ve recently had some more discovered,” Ballard told Jezebel. “And I’m pretty sure, especially with this documentary bringing awareness to what happened, hopefully those that went to him in any nature will get a DNA test. And I fully believe that we’ll have more siblings that pop up.”

While the advent of affordable at-home DNA testing has led to the widespread discovery of fertility fraud, the act itself has a long history. The first recorded artificial insemination that ended in the birth of a live infant occurred in 1884, when Philadelphia physician William Pancoast inseminated a chloroformed woman, without her consent, with sperm from a medical student, before an audience that included that student and five others. Pancoast only told the woman’s husband—after the baby was already born.

When artificial insemination began being widely practiced in the 1970s, it was often cloaked in secrecy, reflecting stigmas surrounding male infertility, the masturbation necessary to produce donor samples, and the idea that a woman who became pregnant by a man who was not her husband could be viewed by some as an adulteress. Many doctors kept no records of their donors to preserve anonymity, and advised that families never inform children of their biological parentage. In one 1987 survey, two percent of fertility doctors reported that they had impregnated patients with their sperm.

American law has largely been ill-equipped to handle these cases. Fertility fraud is generally discovered when donor-conceived adults undergo genetic testing, which means the act only becomes public decades after it occurred, raising statute of limitations complications. Rape charges in many states require “force or threat of force,” and, in Indiana, it’s only a crime to assault someone with bodily fluid if the act is performed in a “rude, insolent, or angry manner”—all factors that don’t tend to be present in fertility fraud cases. Given the limited options, prosecutors believed that the obstruction of justice charge, brought against Cline after he lied to authorities when he denied fathering his patients’ children, seemed the best chance to pursue criminal charges. Cline received a year of probation and was fined just $500.

The recent Indiana law, which Madeira and Ballard helped create, has served as a model for other states. “Indiana’s law sets in place a longer statute of limitations, which allows victims to bring suit,” said Madeira. “It gives an option for $10,000 of liquidated damages or victims can proceed to a lawsuit. In addition to the parents who were the former patients, it allows adult children conceived through fertility fraud to sue. And it also sets in place a low level felony.”

According to the genetic identity rights nonprofit Right to Know, nine states have so far enacted fertility fraud bills. Not all have followed Indiana’s approach, however. In Texas, where, Madeira says, statute of limitations restrictions generally prevent fertility fraud victims from filing civil suits, a 2019 fertility law classifies the violation as sexual assault.

Madeira believes the crime should be seen as both fraudulent deception and sexual assault. “We don’t know if doctors have specific sexual intent towards any certain victims,” she said. “But even if they don’t, they engaged in a sex act, which is masturbation immediately before they inseminated the patient. And so who knows when the clinical touching began and the sexual touching ended because they were touching themselves sexually, they might be under the physiological effects of producing the sperm sample.”

Ballard wishes that the Indiana law included “the sexual assault portion,” she said. “But we also knew how important it was to at least get [the law] passed. In the future it can always be amended.” She also would like to see the creation of a federal fertility fraud law.

These cases may be shocking and high-profile, but the activism they’ve inspired is related to broader efforts among people conceived via gamete donation, many of whom are advocating for the right to learn more about their biological heritage after decades of secrecy and shoddy record keeping. Ballard identifies strongly with others conceived with donated gametes.

“Donor anonymity needs to be gone,” she said. “Along with the adoption community,” the donor-conceived are “such a marginalized group of people that are specifically brought into this world and paid for. And they’re already denied access before they’re even born. That’s access to genetic biological family, to their medical history.”

“We’ve grown up,” she added. “We’re not the babies that our parents had. So we’re now speaking out, because we want rights.”