07 Jan Fertility Doctors Used Their Sperm to Get Patients Pregnant. The Children Want Justice

Decades ago, fertility doctors across the United States inseminated patients with their own sperm. Now, the children of these patients want answers and recourse.

“In 2019, Traci Portugal took a home DNA test, looking for answers about her medical history after some recent, unexplained medical issues. While nothing of note had come up on her mother’s side, her father’s side was largely a mystery. He died when she was 16 years old, and his family was either deceased or estranged. But when Portugal, 45, got the results of her test, she was confused. She didn’t recognize any of the names listed on her father’s side.

When she questioned her mom, Portugal said she eventually confessed that she and Portugal’s father had struggled to get pregnant and sought help from a fertility doctor. According to her mother, the doctor told Portugal’s parents that they should go home, have sex, and come back two days later. Then, he would use donor sperm from a pre-med student to “help move [Portugal’s father’s] sperm along.” It was the 1970s, Portugal told VICE News, and knowledge of how artificial insemination worked hadn’t become mainstream. (The first in vitro fertilization, or IVF, baby wouldn’t be born in the United States for another 10 years.)

Believing this anonymous, pre-med donor was her biological father, Portugal started looking up the social media profiles of family relations highlighted by the 23andMe DNA test. A friend helped her use Ancestry.com to create a family tree on her paternal side and when they found the name of the person they believed to be the donor, it looked eerily familiar: It was the same name as the doctor who had signed her birth certificate—Dr. Gary Vandenberg. It was her mother’s fertility doctor.

Stunned, she reached out to Vandenberg, who was still a practicing doctor in 2019. Portugal said the doctor admitted it: “He said, ‘I donated a lot back then.’ He said he was proud of my existence.”

Instead of using the donor sperm, Portugal now believes the doctor simply left the room, ejaculated into a cup, and proceeded to artificially inseminate her mother with his own sperm. Portugal would soon learn two more disturbing facts: One, she was far from alone—there were dozens of cases of doctors who had used their own sperm on patients without their consent. In fact, in a 1987 survey by the Federal Office of Technology Assessment, two percent of fertility doctors admitted to using their own sperm on patients (the survey didn’t ask if the patients were aware the doctor had used their own sperm). Second, and most disturbingly, Portugal learned that there was no law explicitly prohibiting what Vanedenberg and the other doctors had done. Portugal is one of many children who are appalled by the lack of rights or recourse they have against the doctors with whom they share half of their DNA—and one of many trying to do something about it.

Only five states have “fertility fraud” laws, which, according to the Society for Assisted Reproductive Technology, make it illegal for a doctor to “use or implant reproductive material” without the patient’s consent: California, Indiana, Texas, Colorado, and Florida. Fertility fraud legislation has also been proposed in New York and Nebraska. The oldest law, from California, was written in response to doctors who implanted the wrong embryos in their patients. Fertility fraud laws in Indiana, Texas, and Colorado all passed within the last two years as direct responses to doctors using their own sperm to impregnate patients without their consent. There are many of these stories: Donald Cline, a doctor in Indiana, admitted to using his own sperm on patients, resulting in at least 48 children. Kim McMorries, a still-practicing OB-GYN in Nacogdoches, Texas used his own sperm with at least seven of his patients. Colorado’s law, which was just signed in July of this year, resulted from allegations that Dr. Paul Brennan Jones had used his own sperm to impregnate dozens of patients. (Brennan told a local news station that he would neither confirm nor deny the allegations).

These laws, while an important and necessary step forward in what is a wildly unregulated industry, typically focus on the parent—the person who had the sperm implanted without their consent. “Doctor-conceived” children–-a term some who are born from this deceit use–-are often not recognized in fertility fraud laws; only Indiana and Colorado have included such provisions, and they are limited to civil court. But these children are harmed nonetheless. When a doctor-conceived child takes a DNA test and finds out their biological father isn’t who they thought, the revelation can be traumatic and leads to a slew of devastating questions, starting with their paternal family’s medical history. Further, because of the sensitive nature of both fertility challenges and this very personal violation, doctor-conceived children often feel empowered to speak out when their parents can’t or won’t.

“What our mothers go through when these discoveries are made is very, very complicated,” said Eve Wiley, the biological child of her mother’s fertility doctor, Kim McMorries, and whose advocacy led to Texas passing a fertility fraud law. “They went to a fertility doctor in the hopes of having a child, and they got that, and are so grateful for it,” she told VICE News. “But it was also the product of deception and assault.” (McMorries didn’t respond to a request for comment. In 2019, he told 20/20 that “It was not wrong 33 years ago, as that was acceptable practice of the time.”)

Texas’s law classifies fertility fraud as sexual assault, a designation that Wiley says makes some people bristle. But for Wiley, it all comes down to power and consent. Unfrozen sperm can only live outside of the body for 30 to 40 minutes. “Think about what that means,” Wiley added. “A patient is on the table with her legs in stirrups. The doctor leaves the room and masturbates. Under a state of arousal, he immediately returns, uses his fingers to digitally penetrate the vagina, and deposits the sample inside the cervix.” Sperm, Wiley stressed, that the patient hadn’t consented to having inside her body. “Where does the sexual experience start and end? The lines are incredibly blurred.”

While some doctors have denied that they did this, Dr. Steven Lindheim, an obstetrics and gynecology specialist, told VICE News that Wiley is likely right about how most of these fertility doctors behaved. In 2019, while McMorries told 20/20 that he used frozen sperm with Wiley’s mother, doctor’s notes for Eve’s half sister (whose biological father is also McMorries) reviewed by VICE News say that McMorries used live sperm. In the same year, the Texas Medical Board sanctioned McMorries for his actions. In response, the doctor sued the Board; as of publication, that litigation is ongoing.

“I suppose there’s a chance they had cryopreservation technology in the office and used their own frozen sperm,” Lindheim said. “Anything’s possible. But it’s very, very unlikely.” Further, he said, “no matter how it happens, it’s reprehensible.” Lindheim says anytime you’re concealing something from a patient, you’re going against medical ethics. “We’re supposed to live by the credo of do no harm and patient autonomy. The patient has a right to make the decision.” And when that doesn’t happen, Lindheim believes it’s a violation against the patient.

Many people who have experienced this violation just want to move past the incident without protracted legal battles involving the abuse or media coverage. Portugal’s mother, for instance, doesn’t want to talk to her or anyone else about the genetic reality of Vandenberg being her daughter’s biological father. “She’s still holding on to this idea that it could be the man who raised me,” Portugal said. Because her mother doesn’t want to be involved in any legal action, Portugal doesn’t have standing to bring suit as a child due to current fertility fraud laws in California. (Portugal’s mother did not respond to a request for comment.)

Other biological children of doctors have found themselves in the same position. When Paul, whose name has been changed to protect his privacy, found out through a 23andMe test that his biological father was his mother’s fertility doctor, he wanted to take legal action, but the doctor, Edwin Delfs, had a history of heart problems and died of congestive heart failure in 2002. Paul, 37, believes that his high cholesterol and other heart related issues are likely inherited from Delfs; the doctor’s obituary notes that when he was in his 30s, he underwent his “first triple bypass surgery.” When Paul contacted an attorney about suing the doctor’s estate, he was told that he didn’t personally have a case, but his mother did. It became a moot point, as Paul’s mother told him she won’t take legal action and just wants to move on. (When approached for comment, an attorney for the Delfs family said, “This is not a story that has anything to do with the Delfs family. The doctor died 18 years ago, and family members had no knowledge of what is claimed.”)

While doctor-conceived children are often told to just be happy for their existence, their emotional and physical needs are more complex; one of the most immediate and consequential needs is information about their paternal family’s medical history.

When Portugal reached out to Vandenberg in the fall of 2019, she asked him about his family medical history, still hoping for answers to unexplained medical issues. Portugal said that he told her “‘everyone in my family is very healthy.’ He specifically said there was no history of cancer, heart disease, or dementia.” After a few weeks of online sleuthing, Portugal learned that Vandenberg had a sister who had died in her 60s. She called Vandenberg again and, when he eventually took her call, she says he admitted that his sister had died of metastasized ovarian cancer.

“My mouth just dropped open,” Portugal said. “Up to then, I tried to be positive, like hey, I came from you and you’re not being a douchebag to me, but I couldn’t believe he lied about his family’s medical history the first time I called.” By the time the conversation ended, Portugal said Vandenberg made it clear that he had no interest in communicating further with her. Vandenberg retired shortly after his call with Portugal, though he still has an active medical license. (VICE News called four different numbers listed for Vandenberg, all of which were disconnected, and tried five different emails associated with Vandenberg, two of which bounced back, three of which got no response. A message left for Vandenberg’s son was also not returned.)

For Portugal, having a biological aunt who had ovarian cancer increases the likelihood of developing the same disease. It could impact her children too; family medical history isn’t just important for the biological child, but for their offspring as well. Wiley learned this the hard way when her young son had severe stomach issues. Prior to finding out that McMorries was her biological father, Wiley’s son was consistently getting ill after eating.“He had 12 surgeries, mostly exploratory, by the time he was three years old,” Wiley told VICE News. Eventually, a biopsy led to a diagnosis of celiac disease. Wiley had given the doctors complete medical histories for both her and her husband’s family, neither of which included any autoimmune disease. “Why would they be looking for autoimmune disease in a three-year-old when there was no family history of it?”

The law, however, is not on Wiley’s side. Those who were conceived via a sperm donor, whether through fertility fraud on the part of a doctor, or through an anonymous sperm donation, don’t have an explicit legal right to the donor’s medical records. Jody Madeira, a law professor at Indiana University and author of Taking Baby Steps: How Patients and Fertility Clinics Collaborate in Conception, believes they should. Madeira is an advocate for fertility fraud legislation, and believes access to the medical histories of biological families is an issue of “children’s rights.”

“I realize it can be difficult for donors, especially those who donated anonymously,” Madeira said. “But at some point, we have to put the onus on others and really look at, who stands to lose the most? And that’s the people who would get these genetic conditions and those who would be parenting them.”

But incorporating those rights into fertility fraud legislation can be difficult. Florida State Senator Lauren Book, who successfully spearheaded Florida’s fertility fraud legislation after hearing Wiley’s story, says the initial legislation was much broader than what ultimately passed. “We wanted to include counseling for the children if it was found that this type of fraud occurred,” Brook said. But she found that the law could only pass if it was limited to the mother. “It was very challenging,” she told VICE News. “But the mom is the one who has been [de]frauded.” The law passed without provisions for doctor-conceived children.

Adam Wolf, a prominent attorney in California whose firm Peiffer Wolf Carr & Kane, has represented families in approximately 20 of these kinds of cases. “We represent both moms and children. After all, the children have suffered damages … But when it comes time to file suit, we typically file on behalf of the mom only. The mom is the one who was deceived by the doctor, who had a contract with the doctor, and who was promised something by the doctor (i.e., sperm that was not the doctor’s),” Wolf said in an email.

While there are no publicly available lawsuits where a doctor conceived child successfully sued without their mother also filing a lawsuit, the Indiana and Colorado legislation are proof that including some provisions for children in these laws is possible. Madeira believes there’s a solid legal, and ethical rationale for doing so. “Doctors can be accountable to third parties,” she explained. “Say a doctor gives a patient a medication that makes them sleepy but doesn’t inform them of that side effect. If the patient falls asleep driving and crashes, killing someone, the doctor can be held accountable for that person’s death, for not informing the patient of the sedating effect of the medication.” However, without fertility fraud laws that explicitly include children—giving them rights regardless of if their mother’s involved—it’s likely they’ll run into the same problem as Portugal and Paul: Finding a lawyer to take their case.

While nothing can correct the injustice of what happened to doctor-conceived children and their families, Wiley and other advocates believe they should have some legal recourse against the doctors who deceived their parents. “Unfortunately,” Wiley said, “in these cases, money is one of the only ways to hold these doctors accountable. And honestly, for these narcissistic doctors, it’s probably the best way to get at them.”

In addition to the medical considerations, Madeira and other advocates believe children of fertility fraud should be able to receive damages for emotional distress. After she learned that Vandenberg was her biological father, Portugal said that she became suicidal. “I couldn’t get out of bed, I couldn’t work, I couldn’t parent my kids,” Portugal added. Among the many traumas that resulted from her discovery was a complete loss of her sense of identity. Portugal’s dad–-the man who raised her—was Jewish, and his family had come through Ellis Island. “I was very proud of my Jewish heritage,” she said. “And overnight it disappeared.”

Mark Hansen, 55, had a similar reaction after learning that his biological father was actually Sidney Yugend, the family doctor his mother saw when she and her husband had trouble conceiving. Shortly before his death, Hansen’s “supporting father,” a term Hansen and some other donor-conceived children use for the parents who raised them but to whom they are not biologically related, told Mark that he was not his biological father and he didn’t know who was. When Hansen asked his mom, she told him that Yugend said he was going to “do something” to Hansen’s father’s sperm to increase the chance of conception.

After a 23andMe test revealed that Yugend, who died in 1983, was Hansen’s biological father, Hansen fell into a depression. “It was such a dark time,” Hansen said. “My father was Norwegian, and I grew up with a very rich Norwegian heritage. We would have Lutefisk on holidays and all those kinds of things. I don’t do that anymore; it doesn’t feel true to me.” For Hansen, Portugal, and other children who are doctor-conceived, these foundational aspects of their identity evaporated with the click of a mouse. “You grow up with this knowledge of where you came from and where you belong. It gives you some stability in life. I lost that.” Yugend’s family did not respond to a request for comment.

The creation of any fertility fraud laws are a huge move forward in complicated industry, but many advocates believe more and broader legislation needs to happen at both the state and federal levels. Book, the state senator, told VICE News that the fertility fraud law she passed in Florida is “a first step.”

Book’s twins are a product of IVF, and she is still shocked at the unregulated industry. “It blew my mind,” she said. “There are no guardrails, no regulation.” It’s an issue Book wants to keep working on, knowing that misconduct isn’t limited to doctors using their own sperm to impregnate patients. “When I wanted to conceive, there was nothing I wouldn’t pay,” Book said. “And there are a lot of predatory doctors out there who will push expensive procedures that do absolutely nothing.”

In addition to more regulation and oversight, advocates believe the fertility industry needs to abandon the concept of the anonymous sperm donor. “There is no such thing as anonymity anymore,” said Kara Rubinstein Deyerin, a non-practicing attorney and CEO of Right to Know, an organization dedicated to updating laws around anonymous donors and genetic identity. “Not just because it’s not plausible anymore, but also because it’s not beneficial for the child.” Paul claims that if his parents had told him he was conceived through donor sperm, the shock and emotional turmoil would have been greatly decreased. “It wouldn’t make what Delfs did right,” Paul said. “But acceptance would have been a lot easier.”

If there’s anything the flood of fertility fraud cases makes clear, it’s that some secrets are no longer kept secret. “These doctors never imagined a world in which people could order home DNA tests over the internet and look up anyone on social media,” Paul said. “They never had a reason to think they wouldn’t get away with this.”

Some advocates also think it is incumbent upon fertility doctors to sit down with patients who are using donor sperm or eggs and discuss what they are going to tell their future child. “The goal of the fertility industry is to get someone pregnant,” Wiley said. “After that, they don’t care. They’re not telling parents, hey, when this baby grows up, they’re going to want medical information, they’re going to want genetic identity.” Wiley believes that transparency and increased regulation are essential to an ethical fertility industry.

When that doesn’t happen, when genetics are kept secret only to be discovered through DNA tests, the burden falls on the already traumatized child. “Every time a new sibling pops up—the last one was just two weeks ago—I’m terrified. I have to be the one to tell them what that means,” Wiley said. “I have to relive this over again. Are they going to reject me? Are they going to want to remain anonymous? No one is giving us guidelines for how to navigate those new relationships.”

For Portugal, the most devastating part is not just the broken biological connection to her father, it’s the things she’ll never know because she can’t ask him. “My parents divorced right after I was born,” Portugal said. “I can’t stop wondering if he could tell I wasn’t his, if that’s why they divorced.” Growing up, she and her father were close, but now her belief in that relationship is profoundly shaken. “I wish I could ask him; did he love me less because I wasn’t his?””

Vice | Katie MacBride | January 6, 2021

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