Do DNA Advances Mean Long-Ago Sperm Donors Can Sue?

When Bryce Cleary was a first-year medical student who donated sperm to his school's fertility clinic in 1989, internet genealogy sites and mail-in DNA tests didn't exist.

Now they do, of course, and so there are tools to not only identify paternity but to show whether donor sperm from long ago was misused.

In the case of Cleary, who is now a primary-care physician in a small Oregon town, that is precisely what happened. In May 2018, he heard from two young women who had used the genealogy website Ancestry.com and discovered that they were biological sisters and he was their biological father.

After they contacted him, he did his own search on Ancestry.com via submission of a DNA sample and discovered the true extent of his fatherhood via donated sperm: Seventeen people.

This was a shocking discovery for Dr. Cleary because he recalled that the fertility clinicians at Oregon Health and Science University had told him back in 1989 that no more than five children would be conceived by his sperm. Furthermore, they assured him that the conceptions would be limited to mothers on the East Coast — but nearly all of his progeny on Ancestry.com had been conceived and born in Oregon, and some had attended the same schools as the four children he and his wife had raised.

He responded with a recently filed lawsuit, seeking $5.25 million in damages from the clinic for the allegedly mishandling his sperm. In his complaint, Cleary said that the developments have taken an "emotional, mental, and physical toll" on him and his family.

Similar Recent Cases

If the Cleary case sounds familiar, there's good reason:

• In late 2017, a retired Indianapolis doctor, Donald Cline, pleaded guilty to two felony obstruction of justice charges in a case where DNA had set the fertilization record straight. Cline worked in a fertility clinic where he told women he was matching them with anonymous donors who resembled their partners, but then used his own sperm instead to facilitate at least 50 fertilizations. In a few cases, prosecutors said, he told women the successful sperm was from their husbands.
• Though not on the same scale, a similar case involving a fertility doctor's sperm surfaced in Dallas earlier this year. Eve Wiley, 32, knew that her parents had gone to a fertility clinic and that her dad was not her biological father. Several years ago, she conducted her own investigation, which led her to a Los Angeles writer and publisher, Steve Scholl, who was a donor for the clinic. The two reportedly developed a close relationship — Scholl even officiated at Wiley's wedding — but then a DNA test from Ancestry.com and 23andMe revealed the truth. Her biological father is her mother's fertility doctor, Dr. Kim McMorrie, who has defended using his own sperm as "acceptable practice for the times." Wiley responded by successfully pushing for passage of a law criminalizing fertility fraud. In July, Texas became the first state to make it a sexual-assault crime if a health-care provider uses a donor whom the patient has not approved.
• In August, an Ohio couple, Joseph and Jannifer Cartellone, filed a lawsuit against a fertility clinic after an Ancestry.com test showed that Joseph is not the biological father of their daughter. Twenty years earlier, the couple used an in vitro fertilization procedure using the father's sperm. Earlier this year, the family bought an Ancestry.com DNA test that revealed that father and daughter are not related. The family then filed suit against the fertility clinic for damages and information about the true biological father.

Prospects for Legal Recovery

People who seek to sue clinics and doctors, however, face an uphill battle.

Idaho U.S. District Court Judge David C. Nye explained why in a 2018 dismissal of a suit against a fertility clinic and Dr. Gerald E. Mortimer, who did not disclose that he used his own sperm to inseminate a woman.

"There can be little argument that Mortimer's alleged conduct in using his own sperm to artificially inseminate Ashby without her knowledge is morally repugnant, ethically questionable, and demeaning to Ashby," Judge Nye wrote. "The Court does not take lightly allegations that a physician so grossly abused his position of trust, particularly when those actions are related to the important right of procreation. However, the issue here is whether Plaintiffs can legally recover under tort law for Mortimer's conduct."

The problem for plaintiffs is that while courts might recognize that doctors are behaving poorly, the absence of physical injury or property loss makes it difficult for them.

Related Resources:

• What Happens When the Fertility Clinic Screws Up? (FindLaw's Law and Daily Life)
• Artificial Conception: Artificial Insemination and In Vitro Fertilization (FindLaw's Learn About the Law)
• Do Lesbians Have Access to Fertility Treatments? (FindLaw's Law and Daily Life)
• Find Personal Injury Lawyers Near You (FindLaw's Lawyer Directory)