Bioethics Forum Essay
What’s Wrong with a Fertility Doctor Using His Own Sperm?
When Donald Cline opened a fertility medicine clinic in Indianapolis in 1979, infertility was a relatively new medical specialty. There were no big sperm banks, no online sites for choosing sperm donors by their physical or mental traits. Doctors usually found donors themselves, and most were medical students. Virtually all donations were anonymous, and patients were advised not to tell their children that the fathers who were raising them were not their biological fathers.
Several years ago a group of women filed a complaint against Cline with Indiana’s attorney general, saying that they had learned from a genetic testing website that they were half siblings, and that all of them had been conceived from sperm in Dr. Cline’s office. Cline originally denied using his own sperm to impregnate women who came to him for artificial insemination, but eventually he acknowledged that he had done so about 50 times. DNA testing confirmed he had fathered at least 48 children born between 1979 and 1986.
One of his biological daughters reported the group’s findings to local law enforcement. She was told that there was no law in Indiana against Cline using his own sperm to inseminate his patients. The only crime with which he could be charged was a felony, obstruction of justice for lying to state investigators, to which he pleaded guilty in December 2018. He was sentenced to jail for a year, but the sentence was suspended.
Although a doctor’s use of his own sperm is not a crime in Indiana – or most other states – it contravenes professional ethical norms. Moreover, Cline’s failure to inform his patients that he had used his own sperm to inseminate them violated their rights as patients. In general, patients have a legal right to give “informed consent” to any medical procedures performed on them. Informed consent includes the right to receive truthful information about anything that is materially relevant to their decision to accept or reject the treatment. Doctors may not withhold information because they think it could be upsetting to patients or incline them to refuse treatment that the doctor thinks is necessary. A doctor’s failure to get informed consent from a patient could be the basis for a medical malpractice suit, if the patient has been injured.
Were Cline’s patients injured by what he did? Cline might claim that, on the contrary, he benefited his patients. He increased their chances of getting pregnant, since he was using fresh sperm, which at the time had higher success rates than frozen sperm. It would have been extremely difficult to obtain fresh sperm from donors, since this would require coordinating the schedule of the sperm donor with the ovulation cycle of each patient.
Even if Cline did increase some patients’ chances of achieving a pregnancy, it was unethical not to inform his patients about using his own sperm. Many of them have expressed shock and emotional distress at learning what he did. One of his patients, now aged 66, says, “I feel like I was raped 15 times.” There can be damages for emotional distress unrelated to physical injury in medical malpractice, depending on jurisdiction. However, the harm must be both objectively discernable and severe. This may be difficult to prove.
Another conceivable basis for a medical malpractice suit is that Cline deprived patients of meaningful choices of physician and treatment. Had the couples been told what Cline intended to do, at least some likely would have gone to a different doctor for artificial insemination. His deception was clearly ethically unconscionable. Whether it could result in a successful action for malpractice is unclear. To my knowledge, none of Cline’s patients have filed malpractice suits against him. However, in Indiana, several people sired by Cline are lobbying state legislators to create a new crime – “fertility fraud” — that would punish the intentional misuse of reproductive material with up to two and a half years in prison.
Several of the donor-conceived children have filed civil lawsuits against Cline, claiming that they have been harmed by what he did. Some of them relay shock at learning that Cline is their biological father. One of the children worries that she might have “inherited the DNA of a man who would lie to his patients and abuse his position as a doctor.”
Others are upset to discover that they have multiple half siblings. Moreover, there could be more they do not know about. One has wondered, “Did you [Cline] really think . . . that we wouldn’t meet? That we wouldn’t maybe date? That we wouldn’t have kids who might date? Did you never consider that?” It is not clear whether fathering 50 children in a city the size of Indianapolis actually created a risk of consanguinity, that is, that the offspring might unknowingly marry and have children. Nevertheless, the possibility that this could have occurred, or might occur with their children, was very upsetting to some of them. If the children suffered emotional harm as the result of what Cline did, shouldn’t the children, as well as the parents, have a cause of action against Cline?
What makes the lawsuits of the children Cline sired problematic is the fact that, but for Cline’s use of his own sperm, none of these children would have existed. This is an example of what philosophers call the nonidentity problem. Had Cline used sperm donors, the resulting children would not be the people who are claiming that Cline wronged them. They would be different people, born from different sperm. In light of this, can they claim that they were harmed by what he did?
There are three possible takes on the nonidentity problem as it pertains to this case.
The first is to say that Cline did nothing wrong with the respect to the children he sired. Any claim by the children that he harmed them stems from a failure to realize the nonidentity problem. That is, the children are thinking that, if Cline had used anonymous sperm donors to inseminate their mothers, they would have been born anyway, and they would not have suffered emotional harm. They are simply wrong about this. The only way to prevent the emotional harm would have been to prevent their births. On this view, as long as the children do not wish they had never been born, they cannot claim that they have been harmed by what Cline did. And if they were not harmed, Cline did nothing wrong, as far as the children are concerned.
Philosopher Jeffrey Reiman takes a very different approach. In his view, the children are right to think that Cline harmed and wronged them (at least if their emotional distress is severe enough to constitute a harm), and this claim does not stem from a misunderstanding about identity. Rather, Reiman says, choices about procreation should be made from the Rawlsian perspective of the original position where identity is irrelevant. The question potential procreators must consider is, “What kind of life is the child likely to have?” Potential procreators have an obligation to any future children to avoid bringing them into the world in a seriously harmful condition. It does not matter who the children are. Cline violated the children’s rights if he brought them into the world in a seriously harmful condition, when he could have avoided this by using sperm from anonymous donors.
In my view, Reiman is partly right and partly wrong. He is right about how people ought to think prospectively about procreation. Cline’s failure to think about effects on the future children he created is an important part of the reason why what he did was morally wrong. But I do not agree with Reiman that the children were wronged by Cline. How can the children maintain that Cline wronged them? Given that they are glad to be here, they cannot plausibly wish that Cline had acted differently, since this would entail that they had never been born. A claim of rights violation that is completely severed from a wish that the wrongdoer had acted differently is hard to comprehend.
A more plausible approach, and the one that I take, is to acknowledge that Cline’s behavior was immoral, unethical, and blameworthy, but not a violation of the children’s rights. If there are to be any medical malpractice suits against Cline, these should be limited to the parents, not the children. Nevertheless, public outrage at his behavior is entirely appropriate, and the medical profession was justified in taking away Cline’s license and preventing him from ever practicing again.
Bonnie Steinbock, a Hastings Center Fellow, is a professor emeritus of philosophy at the University at Albany/SUNY.
Author might have also mentioned the discovery in the late 1980’s and 1990’s of the University of California Irvine Medical Center where the doctors not only used their own sperm but also randomly and without informing clients used sperm from other couples. The law suits went on for many years, may still be ongoing for all I know, and shattered lives. The doctors, who were from South America, I believe, fled there and hid from US Justice.
courts should throw this stuff out and refuse to judge this. The couples or families wanted children and the doctors and medical students saw the pain of not being able to conceive every time they saw the patients. There was nothing criminal in any of them going on and fertilizing the egg to relieve the pain and suffering of their clients who could not conceive! In fact, it was probably as close to Christ and it gets. They saw peoples lives being impacted by not being able to conceive and they gave what was needed for the children to come into the world. if any of the fathers were deceived I imagine they wanted the kids so badly at that point that they went on and raised them as their own. I have known men who where sterile. It is like a madness to them that they are denied children. so no doctor or medical student should ever be taken to court for bringing some one the joy of a child. perhaps the child even saved some souls from drastic measures like suicide. I do not think there was any thing sinister in these doctors and medical students willing to provide healthy living sperm to an egg. who ever brought them to court should realize they would not be here if the man had not been thoughtful enough to fertilize the egg. from client perspective they come to the doctors for help to get a child. I would say the doctor went beyond the call of duty to make sure that the couple or woman got a living child. those sueing should be grateful for their lives and for some one willing to take the extra time to make sure they got here. because even then the doctor had to risk the insemination process and if that is true above there was a lack of men donating at the time and the only thing available was some one already interested in fertility science, I really do not see why any one is complaining. it just a nasty society we live in that takes every thing dirty and nasty and evil. and if that was not the intent of the doctors or medical students then it should just be left alone and judges say you know the client went to get a child and they did. i doubt the doctors or medical students charged extra for the service. the people upset should find some one today that can not conceive and talk in depth with them. Those doctors saw people daily and listened to their agony. To be honest unless you were totally money driven I doubt you could resist either. and courts should see it that way. and stop trying to punish all the time when there is nothing but compassion in this one.
The doctors deceived their patients. This is like getting the wrong product you paid for. This harms everybody. A bait and switch is not acceptable no matter how the medical profession tries to justify it. No one would tolerate getting the wrong piece of furniture they ordered. What makes it ok to get the wrong biological children? Many doctors have breeched their trust by depriving fathers of their own children by substituting thier own samples, Used samples in storage without peoples permission or used patients samples on other patients. Are you saying because families are desparate it is ok for a doctor to be unethical and take advantage of their patients? There needs to be rules and consequences for not following them. Laws need to be changed and everything needs to be open and honest. Greed needs to be taken out of the equation. The rights of the child need to come first before the parent or the medical profession. People should have the basic right to know who they are and to be able to access medical history and know that they are not going to marry a sibling by mistake since some donors are fathering hundreds of children.
Going along with the ethics argument mentioned along with other things in the article plus the previous comment, there seems to definitely have been ethical and medical obligations that were not available to all parties. Even if the patients were clear about consenting to the procedure, the source and suitability of the sperm leading to insemination apparently was not assured by adherence to ethical protocol. Certainly being the donor and provider for the patients without them knowing appears to be a violation of patient privacy and professional ethics. There’s probably much more that could be discussed including any motives by the provider. This seems like one of those things you would not expect to happen but as such recalls Murphy’s Law with a hefty dose of good old human nature.
Bonnie Steinbock is correct in her criticism of Reiman’s view that the children were wronged. The key point is: “Given that they are glad to be here, they cannot plausibly wish that Cline had acted differently, since this would entail that they had never been born.” Some years ago I was on a radio call-in show discussing the ethics of post-menopausal women using assisted reproduction to have children. A common criticism of that practice was harm to the future children who would have superannuated parents. In response, I made Steinbock’s point criticizing Reiman. Then a caller was on the air and said he had been unhappy as a child of “older parents.” When asked if that meant he wished he had never been born, he said “Yes.”
FIRST: Of course he behaved unethically. People who are putting their bodies and their biographies in the view and influence of a medical practitioner expect that there is nothing beyond the provision of medical care occurring as their relationship. Couples and individuals seeking donor fertilization generally have a wish to be in no relationship with the donor as a person. To be unknown to the donor and not know the donor. To see no one else in their child but themselves and any partner participating in their rearing. SECOND: The Offspring have an objection that avoids the non-identity problem. To wit: their claim would not be that they were injured by being the product of the doctor’s gamete, but that they were injured by his using one donor in a small community that would create the risk of consanguinity, and having the complications—e.g. fewer prospective safe sexual and/or relational partners in your community and the practical impossibilities of determining who those would be—and anxieties associated with the risk. The damage wasn’t directly to who they were, but to the environment they would live in. FURTHER, that with such a single donor, and especially given the controversial nature of that donor being the doctor himself, that there was a greater likelihood that the donor would not remain anonymous, and that they would come to know not only that their apparent father was not their biological father, but know in a concrete way that for human beings in general, would be difficult to ignore. Learning that they were the result of a donor sperm might still allow them to regard that donation as a blank placeholder. A specific person becomes a fact with meaning that has a non-trivial likelihood of intruding negatively in their established relations and lives.
On reading my prior comment, I can see that I went too far in avoiding expressing my strong aversion and contempt toward the physician’s behavior, and failed to name the specific kind of relationship which patients (and their partners whenever there was one) would be expecting to exclude from the provision of medical care: sex. In what they should have been able to expect, the provisions would be separating/distinguishing and distancing of sex from the reproductive nature of the donor fertilization procedure. It is credible to do this when the donor doesn’t know, has never seen, and will never know the person receiving the donation. Nor does the recipient have any knowledge of the donor. In the next step, the physician would be merely providing the technological and medical care portion of the procedure. It is nearly impossible to accomplish this conceptual and emotional isolation from the sex of the donor, when the donor is the physician and it is the doctor’s own sex that is involved. He becomes more of a participant as a progenitor. He knows the recipient as a person and has interacted in intimate ways with her body. He may identify the child on encountering them later in life in a small community (or even in a large community, the point being that the child would not be unidentifiable to the donor). The most disturbing intrusion of this re-sexualization of the encounter of the patient with her physician is when considering the likelihood of exactly what and who he was thinking about while he masturbated to produce the “fresh” sperm sample for a specific patient he knew to be coming in. I apologize deeply for the distress that thinking of this scenario may occasion, but it’s necessary to “flesh out” with all the injurious emotional implications of this, in order to appropriately consider the magnitude of harm as well as damages which patients can credibly claim. As with public officers obligations, it would not be dispositive what was or wasn’t actually in his mind, the harm of the appearance of sexuality in a relationship which it is established, and something he knew or should have known, must not include sex, is enough for strong sanctions and definite remedies.
If you feel that our life is not worth living as it is but would definitely be worth living with a million dollar payout then would you have a case?
On the other hand, Cline could claim to have not only provided them with a life that they could not have had, but also, to have – admittedly unintentionally, but almost perfectly – provided them one of the key accouterments of modern life, outrage.
In some of these cases, there is another party that has been severely harmed: the husbands/partners of women who believed that their sperm would be used in the insemination process. These men have been fraudulently deprived of their (biological) fatherhood. Further, the couplehood of the man and woman in these cases has been violated by the MDs – they have displaced the male in the couple by discarding their semen and using their own. This violates the rights of both the man and woman, and cannot result in anything but pain and distress for the couple to address. I don’t think this aspect of the violation gets the attention it deserves.