Fer­til­ity and ac­count­abil­ity

Donor fraud, other is­sues chal­leng­ing the le­gal sys­tem

Daily Press (Sunday) - - Health - BY ARI­ANA EUN­JUNG CHA

Ja­coba Bal­lard was con­ceived in a brick of­fice build­ing in In­di­anapo­lis when fer­til­ity doc­tor Don­ald Cline in­sem­i­nated her mother with his own sperm in­stead of the donor sperm he had promised.

To Bal­lard, it was an of­fense akin to rape — one that Cline is sus­pected of re­peat­ing with as many as 50 other women. But the law in In­di­ana, as in most other states, was not writ­ten to ac­count for such a crime. So Cline was charged with ob­struc­tion of jus­tice and ac­cused of false ad­ver­tis­ing and “im­moral con­duct” in the de­liv­ery of ser­vices. He lost his med­i­cal li­cense, was fined $500 and re­ceived a year’s pro­ba­tion.

“My mother was vi­o­lated. He took ad­van­tage of her in one of the most vul­ner­a­ble mo­ments of her life,” Bal­lard said. The sen­tence, she said, was “not enough to send a mes­sage.”

Now Bal­lard, 38, is part of a growing move­ment push­ing for stronger safe­guards on as­sisted re­pro­duc­tion and tougher penal­ties when things go wrong. Led by donor-con­ceived peo­ple who have dis­cov­ered that their very ex­is­tence was marred by fraud or mis­takes, this move­ment is rais­ing tough ques­tions about the re­spon­si­bil­ity of the fer­til­ity in­dus­try that the le­gal sys­tem is ill-equipped to an­swer.

In Ot­tawa, for ex­am­ple, donor off­spring are lob­by­ing for a ban on anony­mous sales of re­pro­duc­tive ma­te­rial fol­low­ing rev­e­la­tions that a fer­til­ity doc­tor there used his sperm to im­preg­nate 11 women. In Utah, the state leg­is­la­ture has ex­panded the def­i­ni­tion of in­cest to in­clude a per­son who know­ingly pro­vides sperm or a hu­man egg to a re­lated per­son for in vitro fer­til­iza­tion.

And in In­di­ana, Bal­lard and other peo­ple sired by Cline are lob­by­ing state leg­is­la­tors to cre­ate a new cat­e­gory of crime known as fer­til­ity fraud that would pun­ish the in­ten­tional mis­use of re­pro­duc­tive ma­te­rial with up to 2½ years in prison.

Sean Tip­ton, chief pol­icy of­fi­cer for the Amer­i­can So­ci­ety for Re­pro­duc­tive Medicine, said er­rors and fraud in the in­dus­try are rare and are eas­ily ad­dressed un­der ex­ist­ing laws. Clin­ics main­tain rig­or­ous safety pro­to­cols to en­sure that the cor­rect ge­netic ma­te­rial is trans­ferred, that donors are prop­erly screened and that med­i­cal work­ers ad­here to strin­gent eth­i­cal stan­dards, he said.

Still, many fam­i­lies who have borne chil­dren through as­sisted re­pro­duc­tion — es­pe­cially us­ing donor sperm or eggs — have strug­gled to re­cover from se­ri­ous lapses, in­clud­ing em­bryos switched be­fore birth, ba­bies sired by the “wrong” fa­ther, and chil­dren who in­herit se­ri­ous, undis­closed med­i­cal is­sues.

Jus­tice is dif­fi­cult to find, or even de­fine, in such sit­u­a­tions. Pros­e­cu­tors and the courts have been re­luc­tant to weigh in, es­pe­cially when a child is healthy. Tak­ing sides, in their view, could la­bel a child “dam­aged” and make an im­plicit judg­ment about the rel­a­tive worth of one life over an­other.

Many of the chil­dren, mean­while, are left grap­pling with a life­time of trauma, know­ing their ex­is­tence is not what their par­ents in­tended.

Pay­ton Zinkon was 3 when her name made head­lines around the world. Be­cause of a lab mix-up, she was con­ceived with sperm from Mid­west Sperm Bank Donor No. 330, who is African-Amer­i­can, in­stead of Donor No. 380, who is white.

Her story came to light in 2014, when her mother, Jen­nifer Cram­blett, and her part­ner, Amanda Zinkon, sued the sperm bank un­der Ohio’s “wrong­ful birth” statute, ar­gu­ing that while they loved their daugh­ter dearly, they were ill-equipped to raise a bira­cial child.

The “wrong­ful birth” law typ­i­cally ap­plies when a med­i­cal provider fails to pro­vide ad­e­quate in­for­ma­tion or coun­sel­ing about the risks of hav­ing a child with a se­ri­ous ill­ness.

In her law­suit, Cram­blett — who grew up in an all-white en­vi­ron­ment — de­scribed “nu­mer­ous chal­lenges and ex­ter­nal pres­sures as­so­ci­ated with an un­planned tran­sra­cial par­entchild re­la­tion­ship.”

Af­ter the Illi­nois sperm bank apol­o­gized and is­sued a par­tial re­fund, Cram­blett’s law­suit was thrown out by a DuPage County judge in 2016. The Illi­nois Ap­pel­late Court up­held that de­ci­sion in June 2017.

Mid­west Sperm Bank de­clined to com­ment on the case. The com­pany sent Cram­blett a re­fund check for the six vials of sperm she had pur­chased and a let­ter of apol­ogy in 2011, while Cram­blett was still preg­nant with Pay­ton.

Now 6, Pay­ton is by all ac­counts adored by her fam­ily. She is un­aware of the con­tro­versy, and her fam­ily hopes to shield her from it for as long as pos­si­ble.

Cram­blett said she is disheartened that sto­ries about the case have fo­cused on race rather than the fer­til­ity in­dus­try’s fail­ures.

“All I wanted was ac­count­abil­ity,” she said. “They made a mis­take and re­fused to ac­knowl­edge their mis­take.”

The pros­e­cu­tion of Cline, the In­di­ana fer­til­ity doc­tor, is one in a string of re­cent scan­dals in­volv­ing doc­tors us­ing their own sperm to fa­ther chil­dren with their pa­tients.

Bal­lard, an emer­gency med­i­cal worker, first came to sus­pect

Cline was her bi­o­log­i­cal fa­ther in 2015 af­ter she took a mail-away test and found that some of his rel­a­tives were her rel­a­tives too. She took her con­cerns to a few half-sib­lings she had met on­line.

Cline’s at­tor­ney de­clined to com­ment on the case.

Along with sev­eral half-sib­lings, Bal­lard has since filed com- plaints with the Mar­ion County prose­cu­tor and the In­di­ana at­tor­ney gen­eral. She has found roughly 50 peo­ple born be­tween 1974 and 1987 who be­lieve Cline is their fa­ther.

Among them is Matthew White, 35, an en­vi­ron­men­tal con­sul­tant who learned he was donor-con­ceived when he was 15. Growing up, he said, he and his mother would of­ten pass the build­ing where Cline’s clinic was lo­cated, and she would tell him how happy she was the day she found out she was preg­nant with him.

Be­cause his fam­ily, which in­cludes both a mother and a fa­ther, al­ways felt com­plete, White said he never sought out in­for­ma­tion about his donor. But then, while brows­ing the In­ter­net in 2016, he spot­ted a news story about Cline and no­ticed that an ac­com­pa­ny­ing pic­ture of the doc­tor looked strik­ingly like him.

“I was think­ing, ‘What is go­ing on? This can’t be true,’ ” he re­called, adding that the dis­cov­ery left his happy child­hood mem­o­ries marred by a “black scar” of de­cep­tion.

To­gether, Bal­lard, White and other half-sib­lings lob­bied mem­bers of the In­di­ana state Se­nate to in­tro­duce the fer­til­ity fraud bill. The mea­sure died in com­mit­tee ear­lier this year, but the group is press­ing leg­is­la­tors to in­tro­duce it again when the leg­is­la­ture con­venes in Jan­uary.

Cline “knew what he was do­ing,” White said. “It was cal­cu­lated, and he got away with it. We can’t let this con­tinue to hap­pen again.”

CAROLYN VAN HOUTEN/WASH­ING­TON POST PHO­TOS

Matthew White helps his kids with home­work in Carmel, Ind. At cen­ter is his mom, Liz, who was in­sem­i­nated with her fer­til­ity doc­tor’s sperm to con­ceive her son 35-plus years ago. As ac­cu­sa­tions against Dr. Don­ald Cline in­creased, he faced crim­i­nal charges and lost his med­i­cal li­cense.

White and some of his half-sib­lings also fa­thered by Cline have lob­bied In­di­ana law­mak­ers to in­tro­duce a fer­til­ity fraud bill.

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