FEDERAL LEGISLATION IN ASSISTED REPRODUCTION
Right to Know, Donor Deceived, and countless volunteers worked over the summer of 2022 to develop a set of FEDERAL bills to protect donor conceived individuals, gamete providers, and families. We collaborated with victims, DCPs, recipient parents, gamete providers, attorneys, policy experts, other industry participants, and medical professionals to create this comprehensive legislation. This bill could’ve changed everything. One person’s actions undermined the confidence of one of the main sponsors and this killed the bills just before being introduced. We must learn to work together if we want to fight fraud and see real change.
The legislation would’ve RETROACTIVELY ended anonymity; provided access to information through a Donor Registry for gamete providers, recipient/legal parents, and donor conceived individuals with requirements for reporting; and enacted guardrails to ensure ethical behavior and standards in assisted reproduction.
BROAD-BASED FERTILITY FRAUD LEGISLATION
Right to Know promotes broad-based fertility fraud legislation with a definition of fraud to include physician, clinic, and donor misrepresentations. Proposed legislation we support also includes a criminal penalty as well as a civil cause of action with standing for the patient, the patient’s spouse, and the offspring, and a minimum five-year statute limitations from the time the fraud is discovered. All bills also include an additional criminal penalty for a physician who uses his own sperm and a provision to lose their medical license if convicted of a fertility fraud crime or civil act.
Visit Donor Deceived for a comprehensive overview of all types of fertility fraud occurrences.
FEDERAL FERTILITY FRAUD LEGISLATION
HR 3710, the Fighting Fertility Fraud Act of 2023, creates clearly defined crimes and causes of action under fraud and false statements and HR 451 focuses on Sexual Abuse with a RICO violation as a possibility. These two bills provide both victims and prosecutors with options of how to address fertility fraud. The two bills complement each other and Right to Know hopes both bills are enacted.
HR 3710 will create two clearly defined crimes Chapter 47 of title 18 – Fraud and False Statements and causes of actions for civil redress with standing for offspring, patients, spouses, and gamete providers. Each crime is also a civil cause of auction with a 5-year statute of limitations from after the fraud is discovered. This affirmatively gives offspring the right to bring a cause of action as well as spouse (both have had all cases dismissed in courts across the U.S.). Request for an anonymous gamete provider may not be used as a defense. The bill will cover doctors who use their own gametes without permission of their patients, when gametes are used in a way the donor didn’t consent to, and address the frauds we are seeing that are still being committed today – gamete provider and clinic fraud.
The two crimes in HR 3710 are:
- Anyone, including a health professional, gamete providers, or health facility that knows (or should have known) provides misleading or false information related to assisted reproduction (and this includes the gametes, identifying info of the gametes, and the gamete provider’s medical, identity, and educational background). 10 years in prison and/or fines.
- A health professional or facility that knows, or should have known, they’re using gametes other than what the patient requested or in a manner inconsistent with the gamete provider’s consent. It is not a defense that the patient requested an anonymous donor. 10 years in prison and/or fines.
HR 451 creates a new crime associated with abuse with respect to assisted reproduction technology under 109A Section 18 – Sex Abuse, to knowingly misrepresent the nature or source of DNA used in assisted reproductive technology or assisted insemination. This is a sex abuse crime so it will likely be interpreted to address the use gametes other than what a patient requested but likely not when a gamete provider fails to disclose their medical history or lies about their education nor when a clinic commits fraud. The bill also adds the sex abuse crime to the list of RICO (Section 1961(1) of title 18) violations, which is a powerful tool but does require showing of a systemic issue. One fraud would not be sufficient to bring a RICO case.
Proposed STATE Laws
MORE INFO on proposed legislation – including legislator email addresses and sample emails. (*indicated states where broad based fertility fraud legislation is introduced)
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FERTILITY FRAUD LAWSUITS
Most cases are settled before they even make it to court. Offspring are repeatedly told they do not have standing because they were not alive at the time of the wrong doing nor were they a party to the contract. This is why fertility fraud legislation is so important. There have been dozens of cases that have settled.
Dr. Paul B. Jones in Colorado state court (April 2022)
Dr. John Boyd Coates III in Vermont federal court (March 2022)
- Arizona, Dr. James Blute III
- Arkansas, Dr. Gary Wood
- California, Dr. G.H.
- California, Dr. Michael S. Kiken
- California, Dr. Phillip M. Milgram
- New York, Dr. Martin D. Greenberg
- New York, Dr. Morris Wortman
- Oregon, Oregon Health & Science University
Iowa was the first state to enact broad-based fertility fraud legislation.
Nevada is the second state to have consequences for all frauds in assisted reproduction.
It will soon be a crime for a gamete provider to lie about their identity, medical history, and social and educational information.
Arkansas, April 2021: Created two felonies and a civil action by the patient or spouse against a health care provider who uses his own sperm without the written consent of the patient, who reasonably should have known the donor did not consent to its use or in the manner it is being used. The statute of limitations is five years after discovery or the defendant admits to the facts giving rise to the action. You can be awarded attorney’s fees, cost of treatment, and economic, compensatory, and punitive damages. It is a class C felony to misrepresent the identity of the donor or the quality of the material used in a fertility treatment with the purpose to defraud. A person is guilty of a class B felony if a healthcare provider knowingly uses unauthorized human reproductive material with 5 to 20 years in prison and a fine of up to $15,000.
Arizona, March 2021: Created a civil action by the patient, the patient’s spouse, the child against a health care provider who uses their own reproductive material without the written consent of the patient. Possible award of compensatory and punitive damages or $10,000 liquidated damages. There’s a separate cause of action for each child. A civil cause of action may be brought within five years of discovering sufficient evidence for a case or the defendant confesses.
California, 1996: Created a crime to use reproductive material other than indicated by the donor’s consent form (except for sperm donors) and to implant reproductive material without written consent of the recipient. Violations punishable with 3 to 5 years in jail and a fine of up to $50,000.
Colorado, July 2020: Created a felony offense (Class 6) and civil liability that can be brought by patient, spouse/partner, or child with liability for each child. May get attorney’s fees. Damages are reasonable compensation for injuries or $50,000. May pursue other remedies of law. A Class 6 felony offense means 12-18 months in jail and $1,000-$100,000 fine. The statute of limitations starts upon the discovery of the offense. Fertility fraud is now included under enumerated unprofessional conduct.
Florida, June 2020: Created a third-degree felony offense for using material without patient’s specific consent, up to 5 years imprisonment, and a $5,000 fine. If a physician uses their own material, it is a second-degree felony, up to 15 years imprisonment and a $10,000 fine. It is not a defense the patient consent to an anonymous donor. Must register with the police. The statute of limitations starts upon the discovery of offense. Fertility fraud included under enumerated unprofessional conduct.
Illinois, August 2023: Retroactively creates a civil cause of action against any one involved in assisted reproductive treatment who uses reproductive material in a fashion not approved in writing by the patient for the patient, offspring, and intended parent of the offspring.
Indiana, May 2019: Human reproductive material used without donor’s express consent. Created a felony offense level 6 with 6months to 2.5 years in jail and up to $10,000 in fines and a civil cause of action which may be brought by the patient, their spouse, or child. Damages include attorney’s fees, cost of the fertility treatment, punitive & compensatory damages, or $10,000. The statute of limitations: 10 years after the 18th birthday of the child (or 20 years after the procedure was performed) or five years after the discovery of fertility fraud through: DNA testing, confession by the health care provider, or sufficient evidence.
Iowa, June 2022: If a health professional uses human reproductive material that the patient did not expressly consent to, it is a sex crime with up to 5 years in jail and a $750- $7,500 fine. It is a crime to provide false information to a patient related to assisted reproduction including the material being used and the donor’s identity and medical history and for a health professional or facility to provide a patient with material in a manner the donor and patient did not consent to (a request for anonymous donor is not a defense); up to 10 years in jail and $10,000 fine. Either crime creates a private cause of action for the patient, spouse, the offspring, and donor. If a doctor used his own sperm, in addition to compensatory or punitive damages, he must pay back child support and for a postsecondary education for the offspring – no parent-child relationship is created for legal purposes. A violation is grounds for revocation of health professional’s or health facility’s license.
Kentucky, April 2022. Use of human reproductive material other than what the patient consented to or use of the health care provider’s own material without the patient’s prior knowledge and consent with 1 to 5 years in jail and up to $1,000 fine. With a cause of action for the patient, spouse, offspring, and donor whose materials were used in a manner other than what was consented to for compensatory and punitive damages with a five-year statute of limitations after DNA discovery and creates a class D felony for such actions.
Nevada, June 2023. Class B felony with 2 to 15 years in prison and up to $10,000 fine.
Ohio, April 2023.
Texas, May 2019: Human reproductive material used without the patient’s express consent to use that specific donor’s specimen is a sexual assault – a felony in the second degree with 2 to 20 years in jail with up to $10,000 fine. Statute of limitations: 2 years after the discovery of the offense. SB1895 passed in 2021 which added a two-year discovery rule to the Texas Medical Board statute of limitations for doctors who use their own sperm.
- Utah, March 2021: A health care provider who uses their own games without patient written consent is guilty of a third-degree felony with up to 5 years in jail and a $5,000 fine.