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 and learn that they are not biologically related to their fathers and often that they have multiple half-siblings. For instance, Donald Cline of Indianapolis, Indiana, has over sixty doctor-conceived children, with more continuing to come forward. Although these cases induce disgust, it has thus far proven difficult to hold these physicians legally accountable because their conduct falls within gaps in existing civil and criminal laws.With horrendous cases such a Colorado reproductive doctor transferring his own sperm unknowingly into his patient, it is important that the laws catch up with rapidly evolving reproductive technology to protect patients against such reproductive fraud.Many states around the country are enacting laws to protect patients against reproductive fraud, with Florida now proposing two bills to address this important issue.Two Florida bills are currently proposed addressing issues relating to assisted reproductive technology and establishing guidelines and penalties for Florida medical providers involved in transferring eggs and embryos into patients to avoid what is being referred to by Professor Maderia as, "illicit insemination".
The bill requires the contract with a donor bank or fertility clinic prior to the insemination to address the following provisions:
The donor dies or becomes incapacitated;
A designated recipient who is to receive the donation dies or becomes incapacitated;
The donor and recipient separate or their marriage is dissolved; andThe specimen is unused, including whether the specimen maybe disposed of, offered to a different recipient, or may be donated to scienceThe proposed bill also establishes best practices for each donor bank and fertility clinic to have written best practices for the storing and segregation of sperm, eggs and embryo to make sure the proper genetic material is being utilized for each patient. The best practices policy must be submitted to the Department of Health each year for review. If a fertility clinic does not have a written best practices policy in place, the bill creates a presumption of physician recklessness in a cause of action brought under the provision of the billFor further reading on the topic of proposed legislation protecting patients from improper medical actions, Professor Madeira of Indiana University’s Maurer School of Law has written the following law review article in the Columbia Journal of Gender and Law, Understanding Illicit Insemination and Fertility Fraud, from Patient Experience to Legal Reform, and has a published article in Fertility and Sterility, Against seminal principles: ethics, hubris, and lessons to learn from illicit insemination.