13 Dec Boston fertility doctor accused of using his own sperm instead of anonymous donor’s

A Maine woman has accused a retired Boston fertility doctor of impregnating her with his own sperm when she expected to receive anonymous-donor sperm during an artificial insemination procedure decades ago.

In a lawsuit filed Wednesday in U.S. District Court, Boston, Sarah Depoian states that in 1980 she and her husband went to Dr. Merle Berger for an intrauterine insemination and he told her she would receive sperm from “a medical resident who resembled her husband, who did not know her, and whom she did not know.” Instead, the suit alleges, he “inserted his own sperm into her body.”

Late last year, Sarah’s daughter, 42-year-old Carolyn Bester, took a home DNA test that, the suit alleges, led her to suspect that Berger was her biological father. Confronted by the mother recently, according to the suit, Berger didn’t deny that he had used his own sperm.

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The case is one of many such incidents that have come to light in recent years as people research their ancestry through mail-order genetic testing companies such as 23andMe. Most cases date to the 1960s and ‘70s, before there were sperm banks. But just last week, a Washington state physician surrendered his license after a patient accused him of artificially inseminating her with his own sperm in 2009.

The Boston lawsuit states: “Dr. Berger’s misconduct was not a mistake: Rather, in order to engage in the actions discussed in this lawsuit, Dr. Berger needed to masturbate in his medical office, walk over to his patient while carrying his own sperm, and then deliberately insert that sperm into his patient’s body—all while knowing that she did not consent to his sperm entering her body.”

“Some people call this horrific act ‘medical rape,’” the lawyer handling the Boston case, Adam Wolf of the law firm Peiffer Wolf Carr Kane Conway & Wise, said in a statement. “But regardless of what you choose to call it, Berger’s heinous and intentional misconduct is unethical, unacceptable, and illegal.”

But Pinto said the case needed to be seen in its historical context. “Dr. Merle Berger was a pioneer in the medical fertility field who in 50 years of practice helped thousands of families fulfill their dreams of having a child,” Pinto said in a statement. “He is widely known for his sensitivity to the emotional anguish of the women who came to him for help conceiving. The allegations concern events from over 40 years ago, in the early days of artificial insemination. At a time before sperm banks and IVF, it was dramatically different from modern-day fertility treatment.”

Berger is a founder of Boston IVF, which he and three other physicians started in 1986 and which is now one of the country’s largest infertility treatment centers, with clinics in six states. For decades until 2021, Berger trained Harvard Medical School residents and fellows as a clinical faculty member at Beth Israel Deaconess Medical Center. A blog post on the Boston IVF website, honoring his retirement in 2020, called Berger’s career “essentially the history of IVF in America.”

In his 2020 book, “Conception: A Fertility Doctor’s Memoir,” Berger describes the early days of fertility treatment. “Until the advent of sperm banks in the 1980s, couples who needed donor sperm were treated, in retrospect, remarkably haphazardly,” he writes. Doctors would “search out healthy-appearing young men” and offer them “$50 per donated specimen.”

“I would always have three to ten men in my ‘stable,’” Berger writes, “so that when a patient was ovulating, I would call one of the men whose physical features most closely matched …the woman’s partner.”

The case filed Wednesday originated after Bester, the daughter born in 1981, purchased DNA kits from Ancestry.com and 23andMe to learn more about her family history, according to the suit. After she received her results early this year, Bester found out that she was related to Berger’s granddaughter and Berger’s second cousin. “After speaking with one of her newfound relatives, Carolyn pieced together that Berger is her biological father,” the suit states.

“To say I experienced shock when I figured this out would be an extreme understatement,” Bester said in a statement. “It feels like reality has shifted. I just want to say how proud I am of my mom for speaking out, and I’m honored to stand by her side.”

Her mother, Depoian, called Berger’s action “an extreme violation. I am still struggling to process it. I trusted Dr. Berger fully. We thought he would act responsibly and ethically. I will never fully recover from his violation of me.”

“Shortly after learning of Dr. Berger’s conduct,” the suit states, “Ms. Depoian contacted Dr. Berger through counsel, the lawsuit states In response, Dr. Berger did not deny that he inserted his own sperm into Ms. Depoian’s body, contrary to her wishes and his promises. He also did not deny that he covered up his misconduct by not telling her about his actions after he performed the [intrauterine insemination].”

The suit accuses Berger of fraudulent concealment, intentional misrepresentation, and violation of the Massachusetts Consumer Protection Law, and seeks monetary damages.

Traci Portugal, who runs the website donordeceived.org for victims of “donor fraud,” said that discovering that a mother’s fertility doctor is one’s father is “pretty life- altering.”

“You’re not only finding out that your father’s not your father, but it was a doctor who did something unethical,” she said. “Your whole sense of identity is wiped out in that moment.”

Portugal said she knows of at least 50 doctors who have secretly used their own sperm for artificial insemination, but believes there are many more.

Last year, a New York woman sued her gynecologist after her 37-year-old son’s genetic research identified the doctor, who has since died, as his father. Also last year a jury awarded $8.75 million to a couple and their daughters who sued a fertility doctor of impregnating her with his own sperm in 1979 and 1984.

Although many of the cases date to a time when there were no banks of frozen sperm, Portugal said, “There’s nothing to stop a doctor from doing it today.”

Advocacy groups are pushing for federal legislation to address a host of issues surrounding fertility treatments, including retroactively ending anonymity and establishing guidelines for ethical behavior. “Right now, there’s really nothing, for those created through donor conception, to hold anybody accountable,” Portugal said.

Source: Boston Globe December 13 2023