Martin D. Greenberg, MD, was sued in May for secretly using his own sperm to inseminate one of his infertility patients 38 years earlier. The patient’s daughter found out last year when she used a DNA test from 23andme to learn about her family history. The 77-year-old New York gynecologist is retired in Florida.
Greenberg is one of more than 30 US physicians who have so far been identified as having used their own sperm without telling their patients, and more cases are likely. All but one of the cases took place before 1990. Most of them came to light in the past few years, when biological offspring found out from home DNA tests.
“It is a gross betrayal of the trust that a patient puts in her doctor. It is an absolute perversion of the practice of medicine,” said Dev Sethi, plaintiff attorney who sued a Tucson, Arizona, physician who inseminated at least 10 patients with his own sperm. “The hubris of a doctor to impregnate his own patient, in some effort to either save money or populate the world with his offspring, is striking.”
Why would these physicians use their own sperm and then keep it secret? Why were there so many of them? When their offspring now try to communicate with them, do they want to have a relationship? And how do they react when they’re found out?
The doctors’ behavior mystifies Sigal Klipstein, MD, a reproductive endocrinologist in Hoffman Estates, Illinois, who is chair of the ethics committee of the American Society for Reproductive Medicine (ASRM).
“These doctors lived with secrets for many years. How do you live with that as a doctor?” says Klipstein, who was still in high school when most of these cases occurred. “It surprises me that anybody would do this.”
Lack of Training and Lots of Secrecy
Were these physicians particularly selfish or egotistical? Or was expedience the prime motivation?
At the time, there was little training in the techniques and ethics of infertility care, says Jody Madeira, JD, PhD, a law professor at Indiana University, who has closely studied the doctors.
“Many of them were ob/gyns, but they did not take CME courses for this work,” she says. The subspecialty of reproductive endocrinology and infertility was just beginning in the early 1970s, according an ASRM spokesman.
Treatment of infertility was a rather hush-hush topic at that time, which made it easier to be deceptive. In 1955, an Illinois court held that artificial insemination constituted adultery. “The social stigma resulting from the practice forces the parents to keep secret the infant’s origin,” a law review article from 1955 states.
“In the 1950s and 1960s and even into the 1970s and 1980s, infertility treatments were considered shameful, and patients were often advised to keep their treatment to themselves,” Madeira says. “With everything so secret, it was easy to be deceptive.”
The field has become more sophisticated since then, Klipstein says. “For known donors, there is a legal contract between the recipient and donor,” she says. “And it is no longer possible to be an anonymous donor. People can find you through DNA tests.”
Owing to changes in the field as well as the growing likelihood of being caught through DNA tests, most experts believe that rampant infertility fraud ended long ago.
How They Were Found Out
When the doctors were active, there was little risk of being exposed. In those times, paternity tests were based on broad factors such as blood type and were unreliable. More accurate DNA tests were underway, but the doctors’ offspring did not think of using them because they suspected nothing.
Most of the doctors’ deeds only came to light with the rise of a new industry ― home DNA testing for people who are curious about their family background. First came 23andme in 2007, then Ancestry.com in 2015. The number of people being tested reached almost 2 million in 2016, 7 million in 2017, and 30 million in 2020.
As more people entered company databases, it became easier to pinpoint biological fathers through other relatives. This explains how doctors who had not taken a home DNA test were identified.
The home tests have been shown to be highly accurate. None of the results for doctors accused of using their own sperm have proven to be false, and courts recognize similar DNA tests as proof of paternity.
But when found out, many of the physicians disputed the results and acted as if they could still keep their secret. “I don’t deny it; I don’t admit it,” Paul Brennan Jones, MD, a Colorado doctor, said when he was accused of siring eight children through his infertility patients decades before. Asked whether he would provide a DNA sample, the 80-year-old doctor responded, “No…because I don’t want to have any incriminating evidence against me.”
How Often Did It Happen?
Donor Deceived, a website that monitors these cases, reports 32 cases of physicians surreptitiously providing sperm to their patients. Eleven of the doctors are linked to one known offspring, two are linked to more than 75 offspring, one to 15, one to 10, three to nine, three to seven, and two to five.
“It’s unlikely that any of the doctors did it just once,” says Adam B. Wolf, a San Francisco attorney who is representing the plaintiff in the Greenberg case. “It’s happened before,” he says. “When doctors get the idea to do something crazy, they do it multiple times.”
Wolf believes that because most people haven’t taken a DNA test, there are many more biological children of infertility doctors who have yet to come forward.
Many of the doctors who were found out have negotiated settlements with patients, under which they pay undisclosed sums of money in exchange for the patient’s keeping silent. Wolf says that of the two dozen victims of sperm-donor doctors his law firm has represented, and all but three have settled.
“We give an opportunity to the doctor to resolve the claims without having to publicly out this person for using his own sperm in his patients,” Wolf says. “Most doctors jump at the opportunity to not be known as the kind of person who would do that.”
Cases about to go to trial have been withdrawn because of being settled. In May, a case against Gerald E. Mortimer, MD, in Idaho, was dismissed after 3 years of litigation. The judge had made some key decisions that made it less likely that Mortimer would win. Mortimer’s biological daughter filed the initial case. She alleged medical negligence, failure to obtain informed consent, fraud, battery, intentional infliction of emotional distress, and several other causes of action.
Madeira objects to the use of confidential settlements, because other offspring cannot be alerted. But she also believes that as more people find out about their parentage through DNA tests, it will be harder for accused doctors to make confidential settlements with all of them, and the doctors will eventually be identified.
In settlements, offspring ask for the medical histories of these doctors. So far, offspring have linked the development of Tay-Sachs disease, cystic fibrosis, and ovarian cancer with these doctors.
Denial: Physicians’ Most Frequent Reaction
Once identified, most of the doctors denied the charge. When Gary Phillip Wood, MD, of Arkansas, was tracked down by his biological son, Wood insisted he had had a vasectomy years before the man was born but still would not agree to a DNA test. He died in April 2021.
None of the identified sperm doctors were interested in having a relationship with their newly identified offspring. When Gary Vandenberg, MD, of California, was contacted by his biological daughter, he abruptly ended the conversation, wishing her “good luck in life,” she recalled. “When I first found out, I was very suicidal. I did not want this existence. I still have those days. My husband had to take off work and stay home quite a bit to make sure I didn’t do anything to myself,” she said.
When Gary Don Davis, MD, of Idaho, was asked about his paternity, he replied, “Let me check on that. Goodbye.” He could not be reached after that, and he died a few months later.
The accused doctors often have no medical records of their work. Wood said that all his records had been destroyed, and Greenberg said he did not have any records on his accuser and doubted that he had ever treated her. A 1977 survey found that more than half of infertility doctors did not keep any medical records so as to preserve the donor’s anonymity.
Many of the accused doctors said they used their own sperm because they were deeply committed to helping their patients. At one physician’s trial, his defense attorney said, “If Cecil made any mistakes, it was in losing his objectivity and trying so hard to get patients pregnant.”
Was It Really Ethically Wrong?
Many of the doctors don’t accept that they did any harm, says Julie D. Cantor, MD, JD, a former adjunct professor at the University of California, Los Angeles, School of Law. “These doctors seemed to be thinking, ‘The patient wanted to get pregnant and have a baby, and that’s what happened, so no harm done,” she says. “But the entire interaction is based on a lie.”
The doctors also had the problem of having to use fresh sperm rather than frozen sperm, as is used today. Sperm had to be used within hours of being produced. If the donor did not show up at the time of the appointment, the doctor might decide to keep the appointment with the patient anyway and provide his own sperm.
However, “these doctors didn’t have to use their own sperm,” Wolf says. “They could have rescheduled the appointment until a new donor could be found.”
Some say that the doctors seemed to have had a very high opinion of themselves and their own sperm. “Some of them had savior complexes,” Madeira says. “They seemed to be thinking, ‘I’m giving the gift of life, and I’m the only one who can really do it, because I have great genes.’ “
When Kim McMorries, MD, of Texas, was confronted with the fact that he had donated sperm 33 years before, he insisted that it was ethical at the time. “When this occurred, it was not considered wrong,” he wrote in an email to his biological daughter.
Today, doctors are bound by the doctrine of informed consent, which holds that patients should be informed about all steps taken in their care. The term was coined by a judge in 1960, and it took some time for some in the medical world to fully accept informed consent. Still, Madeira asserts it was always unethical to secretly fertilize patients.
“Even in the more paternalistic era of the 1970s and 1980s, it was not right to lie to your patients about such an important part of their lives,” she says.
Some sperm doctors insisted that they had received informed consent when the patient agreed to use an anonymous donor. “Dr Kiken did that which he was asked to do,” wrote the attorneys for Michael S. Kiken, MD, of Virginia. “Anonymous donor meant that the patient would not know the donor’s identity, he would be anonymous to her.”
Madeira does not accept this argument, either. “The doctor may have thought it was understood that he could be the anonymous person, but the patients did not see it that way,” she says. “They were not expecting the anonymous donor would be their own doctor.”
“I think what happened is a crime,” says Klipstein, the ASRM ethics committee chair. “It’s an ethical violation, a fracture in the trust between doctor and patient.”
Existing laws, however, don’t make it easy to prosecute the doctors. When lawsuits are filed against these doctors, “you have to shoehorn existing statutes to fit the facts, and that may not be a terrific fit,” Cantor says.
The doctors have been charged with battery, fraud, negligence, breach of duty, unjust enrichment, and rape. But none of them have been found guilty specifically of secretly using their own sperm. Two of the doctors were convicted, but for other offenses, such as perjury for denying their involvement.
Since 2019, five states ― Indiana, Texas, Colorado, Florida, and Arizona ― have passed statutes specifically outlawing infertility fraud. In addition, a 1995 California law requires identifying the sperm donor.
It may be difficult, however, to apply these new laws to offenses by aging sperm doctors that happened decades ago. “Some states have inflexible limits on the amount of time in which you can sue, even if you didn’t know about the problem until recently,” Madeira says. “Texas, for example, allows civil lawsuits only up to 10 years after commission.”
Before the fertility fraud physicians can be brought to justice, many of them might just fade away.
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