In May of this year, Texas legislators passed a law that impacts every reproductive endocrinologist in the state. Recent revelations about the unregulated reality of the assisted reproduction industry disturbed local lawmakers, prompting the creation of a bill to criminalize “fertility fraud”. With a 139-0 vote, the Texas House affirmed the Senate’s unanimous vote from the month prior. But what is fertility fraud? And who does the law aim to protect?
Fertility fraud is the term used to describe any deception used by a fertility specialist during the treatment of a patient. In particular, Texas’s law focuses on the use of sperm (or eggs) from a donor not explicitly selected by the patient. Popular at-home genetic test kits, like 23andMe, have led many to discover they have unexpected or unknown relatives. But a few people, like Eve Wiley, uncovered something even more horrifying: their biological fathers were actually their mothers’ fertility doctors.
Wiley, a mother of two, found out she was the product of assisted reproductive technology when she was 16. Snooping through her mother’s email, she learned her biological father was an anonymous sperm donor. At the time of her mother’s fertility treatments, sperm donor identities were protected by law. That meant Wiley didn’t know who her biological father was - that is until she submitted her genetic material to a consumer database. Her toddler was experiencing some inexplicable medical issues and their pediatrician recommended that Eve try to learn more about her own genetic profile.
After submitting her DNA, Wiley found she had three relatives she thought might be her half-siblings. One of them mentioned an uncle that lived in Wiley’s hometown - her mother’s fertility doctor. In a sickening turn of events, Wiley realized she had been conceived, not with the sperm of the donor her mother had selected, but with that of the doctor himself. Eve Wiley’s mother felt violated when she learned the news.
It’s that violation that spurred lawmakers into action. Before Wiley’s discovery, Texas had no law that would allow Wiley or her mother to seek criminal damages against the fertility specialist. Now, fertility fraud is a crime in its own right in the great state of Texas. But the legislators didn’t stop there; fertility fraud is also considered a form of sexual assault. Rather than using the usual statute of limitations, which kicks in from the date of the crime, legislators decided the clock starts on the day the fraud is discovered. From the time a person discovers their biological father is their mother’s doctor, they have two years to file criminal charges against that doctor.
Texas isn’t the only state creating laws that address this modern moral quandary. A dozen states have passed legislation that makes fertility fraud a crime. Weeks before Texas voted on their bill, Indiana was the first state to create a law specifically targeting doctors who commit fertility fraud.
In the 1970s and 1980s, Dr. Donald Cline inseminated potentially hundreds of patients with his own sperm. At the time of publication, 61 people have confirmed Cline is their biological father. Because Cline did not have the consent of these patients to use his own sperm, many feel the doctor crossed an ethical line. Some doctors explain that Cline might have felt he was not just doing nothing wrong, but that he was providing the best for his patients. By increasing the number of sperm in the sample, fertility doctors in yesteryear may have felt they were increasing the odds of conception. In a twisted way, the doctors who used their own sperm to inseminate patients (and there are several doctors) felt they were providing the highest standard of care.
But some experts refute this supposition, insisting that many of those doctors were egomaniacs, or had sociopathic or narcissistic tendencies. This belief is what led Texas to criminalize the act of fertility fraud and to take the extra measure of defining it as sexual assault. Their hope is that more states will follow suit.