Florida Law Proposed Addressing Reproductive Fraud and Reproductive Battery

Pursuant to Professor Madeira of Indiana University’s Maurer School of Law's article, Madeira, J. (2020). Understanding Illicit Insemination and Fertility Fraud, From Patient Experience to Legal Reform. Columbia Journal of Gender and Law, 39(1), 110-204:
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".

CS/HB 1287: Reproductive Medicine

Per the summary of House Bill 1287, such proposed law, "provides that certain health care profession licensees & physicians who perform specified acts with human reproductive material without recipient's consent are subject to certain disciplinary action; prohibits health care practitioner from intentionally performing specified acts with reproductive material of donor without recipient's consent; provides penalties; tolls applicable time limitations for criminal prosecution." This proposed bill amends an existing Florida law regarding the discipline of health professionals however it specifically addresses grounds for disciplinary action for intentionally implanting or inseminating a patient with human reproductive material without the patient's consent. The bill also introduces the concept of "reproductive battery", providing a cause of action for such violation.

SB 698: Assisted Reproduction Facilities

Per the summary of House Bill 698, such proposed law is, "Requiring a donor to enter into a certain contract with a donor bank or fertility clinic before he or she may donate; requiring a donor bank to clearly label each donation that is transferred to a fertility clinic according to the terms of each donor’s contract; requiring the Department of Health to perform annual inspections of donor banks and fertility clinics without notice; providing civil and criminal causes of action for, criminal penalties for, and disciplinary action against a physician who intentionally or recklessly artificially inseminates a patient with the incorrect sperm, eggs, or embryos, etc." Such bill requires donors of genetic material to enter into agreements with the donor bank or fertility clinic to clearly set out the intentions of the donation (the statutes provides guidelines on the language such contract needs to address), it provides for certain labeling requirements of the donated specimen, and it creates a liability, such as fines and other causes of action, along with an established statute of limitations, for the donor bank or fertility clinic if such protocol is not followed.

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; and

The specimen is unused, including whether the specimen maybe disposed of, offered to a different recipient, or may be donated to science The 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 bill For 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 SterilityAgainst seminal principles: ethics, hubris, and lessons to learn from illicit insemination.