Fertility Fraud and Fertility Clinic Errors: A Forensic Psychologist’s Perspective

As far back as the 1990s, TV shows like Law and Order have depicted cases of fertility doctors who used their own sperm (without the patient’s consent) to get patients pregnant. Although these fictional shows may have seemed detached from reality, recently, numerous public lawsuits alleging fertility physicians used their own sperm in such deceptive ways have revealed the real possibility of such behaviors.

What is Fertility Fraud?

Fertility fraud is commonly thought of as occurring when a fertility doctor uses his own sperm to artificially inseminate a patient without their consent. However, fertility fraud is actually more extensive in nature and may include any fertility treatment in which a healthcare professional intentionally uses different sperm, eggs, or embryos than the patient consented to have used to try to become pregnant. One example includes intentionally using sperm from a different sperm donor than the patient had selected. Another example can be seen in a fertility fraud lawsuit where it was alleged that doctors used patients’ eggs and embryos to get other people pregnant without consent from the patients to whom the eggs and embryos belonged. Although less commonly included in the definition of fertility fraud, some argue that any intentional misrepresentation or dishonest act by a fertility clinic or company should count as a form of fertility fraud. Additionally, a recent documentary about at-home sperm donation, The Man with 1000 Kids, contains allegations that an at-home sperm donor engaged in fertility fraud by mixing his sperm with sperm from another man.

How Common is Fertility Fraud?

There have been at least 50 publicized cases where male fertility doctors are alleged to have secretly used their own sperm or the wrong sperm to impregnate patients. Many of these lawsuits involve women who underwent fertility treatment in the 1980’s. The recent ability to complete personal DNA testing through companies like 23andMe has made it easier for people to determine to whom they are genetically related and to discover fertility fraud. Although numerous lawsuits alleging fertility fraud have been publicized, it is possible that other cases of fertility fraud have been settled privately and some cases of fertility fraud have likely not yet been discovered. Thus, the full scope of the prevalence of fertility fraud is unknown. That being said, given that millions of babies have been born using donor sperm and IVF, it appears that it is a small percentage of patients who may have been exposed to fertility fraud.

What is the Difference Between Fertility Fraud and Fertility Clinic Error?

The difference between fertility fraud and fertility clinic errors is often thought of being related to the fertility clinic/company’s behavior being intentionally deceptive rather than unintentionally negligent. Examples of lawsuits that have alleged negligent fertility clinic errors include lawsuits where tanks storing frozen genetic material (eggs, sperm, embryos) were compromised, patient’s genetic material being stolen from a clinic, and the wrong sperm being shipped to a fertility clinic by a sperm bank.

Why do Forensic Psychologists Become Involved in Cases of Fertility Fraud and Fertility Clinic Errors?

Instances of fertility fraud and fertility clinic errors may lead to lawsuits where the affected patient(s) reports experiencing negative emotional, physical, or other outcomes as a result of the fertility treatment. Since the compensation awarded to the plaintiff in such cases may be based on any emotional damages the patient(s) experienced related to fertility fraud/negligence, forensic psychologists are often retained by attorneys in these cases. Forensic psychologists in these cases may conduct a thorough forensic evaluation (including the administration of psychological testing) to determine whether the plaintiff is experiencing or has ever experienced any psychological distress or disorder and if so, whether that distress can be reasonably attributed to their alleged fertility experiences or rather some other cause. Forensic psychologists with specialty in reproductive (fertility) mental health may also consult with attorneys to help with other aspects of the case such as consultation related to improving understanding of the research on emotional aspects of fertility/infertility treatment and treatment outcomes and/or the reliability/validity of forensic evaluations.