Fertility Fraud: The U.S. Is Experiencing An Explosion Of Legislation. And That’s A Good Thing

More and more cases of fertility fraud have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.

Direct-to-consumer DNA kits have changed our reality. The wall of secrecy that was once behind conception and parenting — including adoptions, affairs, and the use of donor eggs, sperm, and embryos — is crumbling. One major facet of this reckoning with the truth has been the stark realization that many, many doctors were using their own sperm, a form of fertility fraud, to “treat” their unknowing patients.fertility fraud

Sometimes this practice was in place of “anonymous donor” sperm; sometimes, it was actually in place of the spouse or partner’s sperm. It’s pretty gross to think about. But even grosser is the complete lack of accountability for the doctors who must have known of the ethical and moral shortcomings of their actions.

The Justice System Has Been Failing Us

A doctor using his own sperm to impregnate a patient, without her knowledge or consent as to the source of the sperm, must be a crime, right? Or at least a pretty solid tort – fertility fraud? For many states, you guessed wrong. More and more cases of those doctors’ egregious practices have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.

Take, for example, the case of Donald Cline, formerly a licensed medical doctor in Indiana. In one of the most notorious cases of fertility fraud in the United States, DNA tests have shown Cline to have used his sperm in unknowing patients, resulting in at least sixty children. When the betrayed patients and offspring sought legal remedies against Cline, they were unsuccessful. After all, the patients had consented to Cline inseminating them with sperm. Cline did plead guilty to two charges of obstruction of justice, after lying to officials about using his own sperm with patients. But that, to most victims, was not sufficient.

Time To Change The Law

Since current law has been failing the victims, many have sought, and are currently seeking, to change the law. State by state, if necessary. Last year, two successful bills were passed. One was in Indiana, unsurprisingly, as ground zero of the Cline fiasco. Another was in Texas, where Eve Wiley led the charge. (Listen to this podcast where Wiley and her believed-donor tell the twisting and fascinating tale of uncovering the truth of Wiley’s genetic history.) In Texas, without a civil cause of action due to the state’s recent tort reforms, and without a viable criminal cause of action to charge him, Wiley’s “doctor daddy” is still actively practicing medicine even today. That’s crazytown.

Now other states are following suit, and closing the legal loopholes that existed for doctors to take advantage of their patients in this most intimate of areas. And while I doubt that as many doctors are so casually using their own sperm these days, there are certainly modern horror stories involving assisted reproduction, including that of a staff member at a Utah clinic swapping out countless sperm samples with his own.

The states currently making progress in this area include my own home state of Colorado with HB20-1014 (Go, Representative Kerry Tipper!), Nebraska with LB 748, Ohio with HB 486, and Florida with SB 698. Other states, as well, appear poised to introduce their own fertility fraud legislation. While the proposed laws vary, they are consistent in their goals of ensuring or clarifying that this type of behavior by trusted medical professionals is not acceptable and not legal, and providing a path forward for justice.

AboveTheLaw.com, by Ellen Trachman, February 12, 2020

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French Senate passes bioethics law allowing lesbians to artificially procreate

The bill passed by the French Senate is watered down but still extremely transgressive.

The French Senate adopted the draft bioethics law currently under discussion in that body by a relatively small margin of 10 votes on Tuesday. One of its most spectacular elements, the legalization of access to artificially assisted procreation for single women, including those in lesbian relationships, was confirmed, as well as the widening of possibilities for research on human embryos. Other articles of the law were modified by the Senate, which canceled some of its more shocking propositions.French Senate

Although the higher chamber in France still has a right-of-center majority, the text, which remains deeply transgressive, obtained 153 votes in its favor, while 143 senators voted against and 45 abstained. The voting was not uniform right and left — 97 of the 144 “Les Républicains” mainstream right-wing senators rejected the law presented by Emmanuel Macron’s left-wing government, while 25 voted for the text, thus bearing responsibility for its adoption.

The presidential party “La République en marche” (LREM), created for the last presidential election and not very strong in the Senate, was itself divided: six of its 24 senators voted against the text.

Almost all the 348 senators were present, a sign that the revision of France’s bioethics laws is being taken seriously. The first such law was adopted in 1994 and was already transgressive because it legalized artificial procreation and embryo selection.

From the start, it was decided that the bioethics law would be revised every five years in order to take medical and scientific progress and new techniques into account. As a matter of fact, the laws were revised over larger intervals. Each time, new possibilities for embryo research, pre-implantation diagnosis, and other such transgressions were added.

The draft bioethics law now being discussed has been substantially amended by the Senate and will therefore return before the National Assembly, probably in April. Laws are adopted definitively without a second reading in France only when adopted by both chambers in exactly the same terms.

Lifestienews.com, by Jeanne Smits, February 7, 2020

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Anthony M. Brown Featured on the Podcast, The Mentor Esq.

The Mentor Esq., a new legal podcast, recently featured Anthony M. Brown, founder of Time For Families Law, PLLC.

The Mentor EsqThe Mentor Esq. was founded by Andrew J. Smiley, the famed personal injury attorney in New York City, to help younger attorneys, and seasoned attorneys, to learn more about specific areas of the law and about the profession of law itself.  Episodes of The Mentor Esq. cover such topics as civil rights work to women in the law, as well as the ABCs of trial work, from opening statements to cross examination.

This is the first season of The Mentor Esq. and Andrew is currently planning for season 2.  While there are numerous areas of the law, and attorneys, that he could focus on, I am grateful that Andrew allowed me to tell my story and share my concerns for the future of LGBTQ law in New York, as well as in the Country.

Anthony’s Start in The Law

Andrew reached out to Anthony to join The Mentor, Esq. podcast to discuss two separate issues.  On episode four of the podcast, Anthony discusses how he came to the law after a career as an actor and a medical massage therapist.  Andrew asked Anthony about how he started his practice and who guided him along the way.  Click here to listen to Anthony talking about his pathway to the law.   Younger attorneys will find this episode particularly interesting because Anthony discusses new ways to look at your career, especially at its inception, by thinking outside of the box and planning ahead for what you want your legal practice to focus on and how it intersects with your personal life.

LGBTQ Family Law

Andrew asked Anthony back to the podcast to discuss more specific topics such as LGBTQ family formation and the current state of surrogacy in New York.  With current legislation in New York up for a vote very soon, Anthony discusses the specifics off The Child Parent Security Act – the pending law which would legalize compensated surrogacy and provide for parentage orders, which would allow for lesbian couples with known sperm donors to avoid the second parent adoption process altogether.  The Child Parent Security Act would bring New York’s family law into the 21st century.

If these issues mean something to you, it is definitely worth your time to check out The Mentor Esq.  A full episode list can be found here.

Anthony M. Brown, November 26, 2019

For more information, please email anthony@timeforfamilies.com.

Fertility Benefits – A look at the most generous employee benefits out there today

Fertility Benefits – These companies are adapting to workers’ needs, from shipping breast milk home to paying for gender transition.

Jackie Geilfuss recently submitted an unusual expense report to her employer: $6,285 for the purchase of sperm.  Some employers are covering fertility benefits.artificial insemination

Geilfuss and her wife are planning to have a baby. As a same-sex couple, they face thousands of dollars in costs to conceive a child, including the expense of donor sperm. Struggling with the financial burden, they turned to friends and family for help. Then, a few months ago, Geilfuss’ employer announced it would start reimbursing employees up to $20,000 for nonmedical costs to have children.

“This benefit is life-changing for us,” says Geilfuss, who helps employees manage the implementation of new systems at Akamai Technologies, an Internet services and technology company in Cambridge. “We were ready to be parents a long time ago, but it wasn’t something we felt was feasible. We weren’t in a financial position to do that.” Geilfuss and her wife, Jessica, began fertility treatments this month.

Akamai is among a growing number of local companies that have expanded their employee benefits beyond standard medical coverage, often looking at options to add through the lens of diversity and inclusion. Several large employers now offer new fertility benefits to help single people and same-sex couples start families. Some are adding supports for new mothers, or broadening coverage for people transitioning from one gender to another.

“It’s a really hot topic,” says Liz Spath, a Boston-based benefits consultant at the consulting firm Mercer. “They’re looking to programs like this that really drive culture. Anything that’s family-friendly and lets people bring their full selves to work is top of mind.”

Expanding benefits can be expensive, but there are many potential advantages for employers that do, including recruiting and retaining talented workers, fostering a corporate culture that appeals to clients, and improving their rankings on job sites.

“It does play a role in helping candidates understand what we’re all about and where we place value,” says Sarah Sardella, senior director of global benefits at Akamai, which now reimburses employees for costs of surrogacy, donor sperm, and donor eggs.

BostonGlobe.com, November 14, 2019 by  Priyanka Dayal McCluskey

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The Anonymous Donor Myth

The anonymous donor myth was, only a few years ago, not a concern to the many anonymous sperm and egg donors who have helped countless families around the world.

The anonymous donor myth has only in the recent past become an issue that anyone considering becoming an anonymous donor, or anyone considering using an anonymous donor, must confront and plan for.  ART (assisted reproductive technology) lawyers must also factor into their counsel with all parties to an ART agreement the reality that there simply may be no such thing as anonymous donation anymore.  This counsel must address not only gamete (sperm and egg) donation, but also embryo donation and adoption.anonymous donation myth 2

If you think about it, there really is no such thing as anonymity any more.  This year, Facebook has over 2.3 billion monthly active users.  YouTube has 1.8 monthly active users.  Twitter has 320 million monthly active users.  With other social platforms such as Instagram, WeChat and Snapchat providing information on its users to anyone who has not perfected the art of keeping an account private, there are literally millions of ways to locate and identify a person with just a small amount of information.

I was recently in Seattle for the annual conference of The Academy of Adoption and Assisted reproduction Attorneys (AAAA) where a fascinating presentation was given on just this subject.  One speaker demonstrated how, with the scant information she had provided when she was an anonymous egg donor, how it took her less than 5 minutes to find herself on social media.  She essentially did a facial recognition search which yielded a direct hit result.  And this was just possible from the picture she used in her egg donor profile.  That picture, coupled with her educational background, made a google search of her provide instant confirmation of identity.

The anonymous donor myth becomes even more implausible when you consider the influx in popularity of commercial DNA testing kits such as 23andMe and Ancestry.com.  And the implications for anonymous donors go way beyond gamete donation, but adoption as well.

The reality of the anonymous donor myth hit me hard, and in a completely unexpected way.   I was at work one afternoon when the phone rang.  It was a former client of mine with whom I had done estate and probate work.  Her voice was shaking when she called and I could tell that something was very wrong.  She told me that a relative of hers was contacted by a woman who explained that she was adopted at birth and that she had done an ancestry.com DNA test.  The test revealed that her birth mother was related to the relative of my former client.  She then related to me the story of how when she was younger she had been molested, and that molestation resulted in a pregnancy.  She gave the child up for adoption and had told no one in her family about it.  She was reliving that trauma knowing that her secret would most likely be revealed due to an inadvertent action by a relative of hers who had also had the DNA test performed and who had consented to its results being added to a national database.

anonymous donor myth 1One of the most sacred areas of law for expectant mothers who, for many important reasons, cannot keep their children is called “infant safe haven” law.  This type of law decriminalizes the abandonment of unharmed infants in specified locations, such as hospitals, police stations or fire houses.  Mothers need to know that if their personal circumstance requires them to seek the protection of an infant safe haven law; they must be able to rely on the confidentiality that these laws were designed to provide them.  If mothers fear that their identity will be revealed through DNA or Facebook searches, they are less likely to place the child in a safe space.

The reality is that a medical professional or facility can do their best to shield the identity of a donor, but they have no control over the actions of others down the road, like the donor herself, the intended parents or even the child who is the result of ART.  One positive reaction I see in the ART community is the encouragement, with thorough explanation, of known gamete donation.  Known gamete donation can be helpful in many ways.  If a child has a medical issue that may be genetic, with a known donor, parents may access that information more easily.  Studies have also shown that the earlier a child is told about his or her origin story, the better adapted they are.  Having a known gamete donor may make the difference to a child questioning their genetic heritage. 

The anonymous donor myth does not have to be a devastating blow to a family.  With proper professional, both legal and psychological, intended parents considering gamete donation will be able to make informed and beneficial decisions.  These decisions will have long lasting effects on the mental and physical well-being of their children.  As professionals, it is our duty to explore all possibilities with our clients and to ensure that they understand the implications of the anonymous donation myth.

By Anthony M. Brown, Esq. – August 6, 2019

For more information, please email anthony@timeforfamilies.com.

U.S. women with less income, education often lack access to infertility care

Although women from all walks of life tend to experience infertility at similar rates, a new U.S. study suggests there are wide disparities in access to treatment.

Researchers examined survey data collected between 2013 and 2016 from 2,052 women, ages 20 to 44, who were representative of more than 45 million women nationwide.PGS, PGD

Overall, 12.5% of the women reported trying to conceive for one year without becoming pregnant, the timeline doctors typically use to define infertility. Just a third of those making less than $25,000 a year sought treatment for infertility, compared with two thirds of those making $100,000 or more, researchers report in Fertility and Sterility.

“People of all races, education levels, incomes, citizenship statuses, health insurances and sites of health care use report similar rates of having infertility,” said Dr. James Dupree, an assistant professor of urology and obstetrics and gynecology at the University of Michigan in Ann Arbor.

“Women with less education, lower incomes, non-citizens and women without health insurance and without access to physician offices did not see their doctors as often for help with infertility,” Dupree said by email. “So, patients and families should know that if they have infertility, they’re not alone, and they should go to see their doctor for help.”

Most healthy couples can conceive within three to six months, although the process can take longer for people who are older or who have fertility compromised by certain medical conditions or lifestyle habits.

Infertility rates in the study ranged from 5.8% among women 20 to 24 years old up to 20.5% among women 40 to 44 years old.

Older women were also more likely to seek help: 67.3% of women 35 to 39 years old with infertility saw a medical provider, as did 61.7% of infertile women 40 to 44 years old. Only 11.7% of women 20 to 24 years old sought treatment for infertility.

Reuter.com, by Lisa Rappaport, July 17, 2019

Click here to read the entire article.

Legal Basics for LGBTQ Parents

It’s never been easier for LGBTQ people to become parents.

We can now adopt and serve as foster parents in every state in the country. Thanks to advancements in assisted reproductive technology, otherwise known as ART, and innovative co-parenting and known-donor arrangements, we’re also having biological children in greater numbers. llgbtq parentingDespite this progress, a complex network of state laws, regulations and restrictions affect many of our most common paths to parenthood, meaning would-be LGBTQ. parents can face a far more complicated legal landscape than our straight counterparts. 

Legal concerns for LGBTQ people are generally impacted by three factors: the state you live in, your preferred path to parenthood and your relationship status. To gain a better understanding of each, I interviewed four experts at some of the country’s top LGBTQ legal and policy organizations.

THE GIST

  • Know the laws in your state; your legal outlook can vary widely depending on where you live. 
  • Your preferred path to parenthood (donor arrangements, adoption or fostering) will present you with a specific set of legal considerations. 
  • Other legal concerns arise depending on your relationship status: whether you’re single, in an unmarried relationship or married.
  • If you are not biologically related to your child, legal experts recommend taking steps to protect your legal status as a parent, even if you’re married to your child’s biological parent. 
  • Parenthood for LGBTQ people doesn’t always come cheap — but there are some ways to offset the costs. 
  • If you encounter obstacles, don’t give up. An experienced family lawyer is often familiar with legal workarounds, even in states with unfavorable laws for the LGBTQ community.

NYTParenting.com by David Dodge, May 7, 2019

Click here to read the entire interactive article.

Desperately Seeking a Black Sperm Donor

Nikki and I did something often considered too good to be true. We stumbled across each other in a humid, dark, loud nightclub in West Hollywood during the 2014 Los Angeles Pride weekend; it was love at first sight. 

anonymous sperm donorsFast forward to 2018, when we got married and bought a house within the same week. But our dream wouldn’t be complete without one more miracle: motherhood. The medical recommendation is that women have children before the age of 35, so we decided that Nikki should carry first since she’s 33 and I’m 28. But like many folks who seek out fertility help, we had no idea how difficult it would be to find the perfect sperm donor, let alone a black sperm donor.

Nikki is an extrovert who works as a global partnership senior manager for a top technology company. If her perfect smile and big hair don’t blow you away, her optimism and ambition will take you around the universe and back. Nikki would describe me as a super creative, solutions-oriented introvert. I’m the person everyone comes to for advice, but I was at a loss when it came to finding a suitable sperm donor for our needs.

Even before we started looking, I was under the impression that there was a limited supply of black donors. Maybe that’s because I don’t know any black donors. Maybe it’s because buying sperm or conceiving a baby in this fashion isn’t considered a “black thing.” As it turns out, I was correct. Though private sperm banks are not required to share the ethnic origins of their donors publicly, as we started our search we found the number of black donors to be vanishingly small.

Below is a conversation between Nikki and me about the start of our journey to motherhood. It has been condensed and edited for clarity.

Nikki: I searched for a gay-friendly sperm bank, because I figured that sperm banks function like most institutions or companies.

B.A.: How do most institutions function? Are you saying that you expected sperm banks to be less prepared to assist customers who weren’t white, straight and married?

Nikki: Yes, potentially. So, I felt like I needed to specify gay-friendly sperm banks. I came across a blog that listed about 10 sperm banks with each bank’s contact information, a little blurb on why to choose that bank and how they accommodated LGBTQAI+ families. The bank we ultimately decided on offered extensive genetic testing and data, and the website had a little rainbow heart confirming their support for families like ours.

NYTimes.com, by B.A. Williams, May 6, 2019

Click here to read the entire article about seeking a black sperm donor.

The Right Way to Legalize Surrogacy in New York State


New York State is on the brink of replacing an outdated and prohibitive law that criminalizes the practice of compensated surrogacy, one of only two states that does so.

Legislation to reverse the law has been introduced in both houses of the state Legislature, and Governor Cuomo has demonstrated support for it by including it in his Executive Budget.

As a law professor who focuses on gender equity, I’ve taken great interest in issues related to surrogacy in the United States and abroad. I’ve closely reviewed laws in multiple states as well as internationally and I support New York’s legalization of surrogacy.

When a woman chooses to support a couple or individual by serving as a gestational surrogate (where she is not genetically connected to the child because she did not contribute her egg), I believe she must have the autonomy to do so – provided she is protected by the law to ensure that any power imbalance between her, on the one hand, and the intended parents, surrogacy agencies and doctors, on the other hand, is mitigated.

The proposal the New York Legislature is considering and that Governor Cuomo is advancing, the Child-Parent Security Act, does protect surrogates in many ways. While the bill clarifies the parentage of all children born through third-party reproduction, here I focus only on how it legalizes and regulates gestational surrogacy arrangements.

Protections provided by the bill include: giving the surrogate the sole right to make decisions regarding her own health or that of the fetus or embryo she is carrying; giving the surrogate the sole right to terminate the pregnancy; and ensuring that the surrogate is represented by her own legal counsel. These types of commonsense protections are critical to creating a successful and effective program. If the New York Legislature passed the Child-Parent Security Act, New York’s law would be more protective of women who choose to be surrogates than laws in many other states.

Reexamining current law is long past due as technological advances and changes in acceptance of various family structures have made surrogacy much more commonplace. When lawmakers first implemented a ban on surrogacy in New York in 1992, they did so for several reasons that are less relevant today.

For example, when the restrictive New York law was enacted, there were ethical concerns about what was then nascent medical treatment — in vitro fertilization (IVF). Today, IVF is commonly-accepted as treatment for infertility and is also used in the gestational surrogacy process.

Despite the ban, today New Yorkers do work with surrogates to build families. They are just required to employ surrogates living in other states. This results in legal challenges, risks, and costs for the intended parents, including confusion regarding what laws are applicable to the situation.

GothamGazzette.com, February 21, 2019 by Sital Kalantry

Click here to read the entire article.

A new study suggests an LGBTQ millenials ‘Baby Boom’ is in our future

LGBTQ millennials are leading the way when it comes to the growth in LGBTQ families according to a new survey from the Family Equality Council, an LGBTQ rights organization.

LGBTQ millennials

The survey found that 63% of LGBTQ millennials between the ages of 18-35 are looking at starting a family or adding to their current one. What’s more, results from the LGBTQ Family Building Survey show that 77 percent of LGBTQ millennials are either already parents or are considering having children. This is 44 percent higher than LGBTQ people over the age of 55. 

The data points to a shift in the LGBTQ community in the wake of the 2015 Obergefell v. Hodges decision which secured marriage equality in the United States. The U.S. Supreme Court ruling fueled speculation that we’d see a dramatic shift in LGBTQ family growth as a result.

Additionally, the survey revealed that 48 percent of LGBTQ millennials are actively planning to grow their families in the future, narrowing the gap between them and the 55 percent of non-LGBTQ respondents. In a 2013 Pew Research Center poll, only 35 percent of LGBTQ adults were shown to be parents, compared to 74 percent of non-LGBTQ adults.

That means in the last five years, the gap between queer and non-queer people wanting families went from 39 percent to 7 percent. Likewise, transgender survey respondents were found to be equally likely to grow their own families as their non-transgender peers.

by Gwendolyn Smith, LG BTQNation.com, February 10, 2019

Click here to read the entire article.