How Is Fertility Fraud Not Illegal Yet?

Picture this: You’ve been waiting on the results of the 23-and-Me kit you got for your birthday, hoping to learn more about your genetic lineage. Maybe you’re excited to dig into your family’s history, or maybe you just want better info on whether you’re really lactose intolerant (or if it’s just Pizza Hut that makes you sick to your stomach). You go to check out your father’s heritage using the Ancestry.com feature, except you don’t recognize the man’s name who comes up as your biological father. His name is on your birth certificate, though: He signed it as your mother’s OB/GYN.

23 and Who?

For some people, this nightmare is no hypothetical. In fact, it’s the story of Kelli Rowlette, a woman whose world was turned upside down by fertility fraud. Her parents had paid their doctor for a sperm donor they were told was a “current university student who was taller than 6 feet with brown hair and blue eyes.” Instead, the doctor repeatedly used his own sperm to inseminate Kelli’s mother for months, provided postnatal care for the mother and daughter following the birth, and reportedly cried when he heard they’d be moving out of state. By the time Rowlette found out, she was 36 and the doctor had already retired. This lawsuit could have set an important precedent bringing unethical doctors to justice. Instead, she had her lawsuit dismissed after over three years of pleading her case.

Doctors swapping out donor sperm for their own is a surprisingly common issue. In some cases, these breaches of duty have resulted in up to 200 children whose parents have no idea they were tricked by the medical professional they hired to help them. The most shocking part of all? This isn’t illegal federally, and is only illegal in a handful of states. Rowlette’s lawsuit had to be tried in civil court because there was no law on the books designating what her doctor did as a criminal act. The prevalence of anonymous donors means that even in cases where the doctor did use donated sperm, it can be extremely difficult to know or prove that the donor was the one the parents selected – or that his credentials were true. 

Donation fraud can pass on life-threatening birth defects to donor-conceived children.

The issue for fraudulent donors isn’t just about superficial factors, either; donation fraud can pass on life-threatening birth defects to donor-conceived children. In one case, a man who sold his sperm using a fake identity has been accused of transmitting hemophilia, a dangerous bleeding condition, to as many as 36 children. Many men are incentivized to be serial donors precisely because it’s not “donation” at all: Fertility is big business, and men who provide the raw materials get a cut of the profits.

The Growth of Fertility Fraud

Kelli Rowlette’s case may be one of the first of its kind, but it’s far from the last. Sperm donation and its ethical conundrums are becoming more common over time as couples struggle to conceive. The U.S. fertility rate has been declining for decades, plateauing at or below the replacement rate since the early ‘70s. One in 5 women now struggles to get pregnant, and 1 in 4 has trouble carrying to term. But while female fertility tends to get the bulk of media attention due to things like surrogates and egg donors-for-hire, most of the time male infertility is to blame. The rise in low or abnormal sperm production leads many couples to rely on donated sperm to conceive, often selecting donors based on a range of educational, aesthetic, and genetic criteria, and paying big bucks for more elite donors. The increased number of families needing donors has heated up the fertility market, providing more and more opportunities for doctors to abuse their access to vulnerable mothers-to-be.

So how have these fraudulent doctors been hiding for so long? Well, for one, they’ve been getting parents to help them. Historically, doctors have recommended that parents not tell their children they’re donor conceived. This isn’t always malicious, even if the recommendation can help shady doctors hide. Many parents avoid telling their children out of a desire for privacy, because they're uncomfortable about their infertility, or simply because they don't want to negatively impact the children’s relationship with the father raising them. While it may have its benefits for family life, it does keep donor-conceived children in the dark about their own medical histories, leaving them at a disadvantage when experiencing genetically-influenced conditions or even avoiding accidental incest. 

Conception and Consent

The consequences of fertility fraud have sparked a movement calling to raise awareness and finally make it illegal, with donor-conceived children leading the charge. Advocates involved with the Netflix documentary Our Father, about fertility doctor Donald Cline who fathered over 50 children through fertility fraud, say that existing civil lawsuits aren’t enough, and that fertility fraud itself needs to be illegal. “When Cline was only charged with obstruction of justice ... the entire narrative got changed. It became about Cline lying to the State of Indiana and not about these illicit inseminations, not about the medical rape, not about the harm, not about the identity issues,” said Jody Madiera, legal professor at Indiana University Maurer School of Law, in an interview with Netflix. “It warped the whole story. Cline got a $500 fine essentially and got labeled a felon.”

Now, lawmakers are pushing for federally established laws around fertility fraud. The Protecting Families from Fertility Fraud Act of 2023 is a bipartisan bill that would make it illegal for doctors who knowingly use sperm, eggs, or embryos the client didn’t choose, making the charge a sexual abuse crime. The bill is also an important step in reframing who suffers the consequences of fertility fraud. With as many as 30,000 to 60,000 children conceived with donated sperm annually in the United States, the offspring of fertility treatments have been historically treated as bystanders rather than victims. This new legislation could change that. “The act treats a doctor’s action as one of deception, assault, and a lack of consent,” Emma Waters argues in commentary for the Heritage Foundation. “Modern thought often reduces moral problems to the ‘language of autonomy, fairness, and individual rights.’ Hence, the speakers invoked a lack of consent in describing the harm done by these doctors. Even if the mother consents to an anonymous donor, the child doesn’t.”

Even if the mother consents to an anonymous donor, the child doesn’t.

Many donor-conceived children are self-organizing, too. Donor-conceived advocates spoke at the 2019 United Nations Conventions on the Rights of the Child, rallying for the rights to "access information about their identity and origins" and "ensure that comprehensive and complete records of all parties involved in the conception of the child.” We Are Donor Conceived, a global advocacy organization that originally began in a Facebook group, is also pushing for the wild west era of sperm donation to end through activist organizing.

Closing Thoughts

Fertility fraud is a symptom of a medical establishment that is being totally reckless with women’s health. As science continues to evolve to help solve our fertility crisis, we need to ensure that women’s informed consent is considered a necessary but insufficient criterion for ethical action. Fertility fraud should have been illegal long ago, but the conversation it’s generating should encourage us to take a second look at treating babies like products and mothers like customers. A culture where the only thing that matters is consent will inevitably end up hurting people it never even considered — including those whose lives haven’t yet begun.

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