When a doctor uses his own sperm to inseminate a patient, is it a crime?
In a 1987 survey by the US Office of Technology Assessment, two per cent of fertility doctors said they had used their own sperm to inseminate patients. (See "Sources of Fresh Semen" on page 43.) Given that, we probably shouldn't have been shocked when, after genetic testing became widely available, a few such doctors were outed.
There was Norman Barwin in Ontario, Donald Cline in Indiana, Gerald Mortimer in Idaho, Ben Ramaley in Connecticut, and John Boyd Coates in Vermont. Not to mention the ones in Europe and elsewhere.
There is wide consensus that the practice is not ethical. The fact that doctors never disclosed what they were doing suggests that even they had qualms.
But one of the huge frustrations for families is that it is proving very hard to hold doctors to account. There are no laws explicitly prohibiting a physician from inseminating a patient with his own sperm. There aren't even many laws that nibble at the edges.
Jody Madeira, a law professor at Indiana University, has published papers on this issue. She explores how existing laws might be used to punish what she calls "insemination fraud," but she also takes a hard look at the ways these laws might fall short.
She argues that physicians must be brought to justice and individuals who have been harmed should be recognized, supported and compensated. "Failing to hold physicians who engaged in insemination fraud accountable," she writes, "creates the impression that such conduct is not legally punishable and runs counter to legal frameworks such as informed consent..."
Last year, two states, Indiana and Texas, passed laws that went some distance to address the issue. Indiana made it a criminal offence for a health professional to "misrepresent" human reproductive material. Texas made it illegal to use donor gametes that the recipient hasn't consented to.
It somehow feels that we should be able to do more — charge them with fraud or battery or even rape. But for all sorts of reasons, this has not been easy.
A few weeks ago, Madeira delivered a seminar at the University of Toronto Faculty of Law on fertility fraud. I was unable to attend, but I did have a look at some of her papers.
Among the many interesting points she raises is whether a doctor inseminating a patient with his own sperm is similar to having sex with a patient, something that is generally forbidden, often punished, and in some jurisdictions considered a criminal act. Below, I highlight a few of her arguments suggesting it is.
The Three Penetrations
When a doctor covertly uses his own sperm to make a patient pregnant, he is committing a unique kind of wrong. It is hard to find acts that are analogous, says Jody Madeira, a law professor at Indiana University. She wonders, however, if the closest transgression is physician-patient sex.
Physicians are discouraged from having sex with their patients because it's generally agreed there is a power imbalance. That makes it hard for a patient to give meaningful consent. Most prohibitions against doctors having sex with patients, however, come from the professional bodies that regulate them. Only a handful of states, says Madeira, actually have laws that criminalize it.
Some people argue that insemination is not like sex, because it is a clinical procedure, rather than a sexual one. "But is a medical procedure like insemination still clinical when the physician performing the procedure masturbates to ejaculation in a nearby room, catches his sample, walks to the examination room where his patient is waiting and inserts his sample into her vagina via a syringe and catheter?" asks Madeira.
Clinical touching that is performed solely to help a patient conceive, she argues, could easily cross the line to become sexual touching — performed at least in part for the physician’s own gratification. "It is no longer so clear that the act is a clinical touching, as it involves masturbatory stimulation, potential erotic thoughts of the waiting patient, and intimate touching of the patient almost immediately after the physician concludes his own sexual experience," she writes. "The point at which the touching ceases to become sexual might depend on hard-to-prove factors such as whether the physician became aroused thinking of his patient, and what emotions he experienced while performing the insemination." The boundaries are blurry at best.
Madeira argues that both physical and metaphorical penetration takes place when a physician uses his own sperm in artificial insemination.
"The first penetration comes when the physician inserts medical equipment, including a speculum and disposable insemination catheter, through a patient’s cervix into her uterine cavity, injecting his sperm specimen. Patients have consented to this procedure, but not to its performance with the physician’s sperm.
"The second penetration comes when the physician’s biological material joins with the patient’s, implants into her uterine lining, and forms a placenta, breaching her physiological barriers in the most intimate way possible.
"The third penetration, more sociocultural than physiological, follows from the child’s birth. The resulting child is welcomed into the patient’s family and held out as their own, obtaining legal rights and privileges to their emotional, social, and financial support." The physician has imposed his own procreative capacity; the physician has become the biological father of the patient's child.
Is it rape? That's not clear. Under Indiana law, in order for an act to be considered rape, a person has to be "compelled by force or imminent threat of force," unable to consent, or unaware that the conduct is occurring.
In these cases, the patient is aware that the insemination is occurring, and has consented to insemination. She may even have consented to insemination by an anonymous donor. A doctor might argue that it was anonymous to the patient, and so consented, says Madeira.
But she points out that the conduct is very similar in nature to “sex by deception” cases. Although the courts typically decide against these, arguing that fraud is not force, Madeira points to two instances where it was applied: in one instance, when sex was misrepresented as a surgical operation, and in another, when sex was procured by pretending to be the victim's husband.
Madeira's ideas are compelling. There is something sexual — even rapelike — about this act. In many ways, though, it seems much worse than doctor-patient sex.
The patient is vulnerable, both emotionally and physically. The patient is trusting. The patient has in no way consented to this. The patient is not informed of this. The patient is the victim of a deceit. The doctor knows a secret about the patient that the patient herself is not privy to. The patient continues her life under an illusion. The patient does not get to choose when she finds out the truth. The patient loves the child but hates the act that brought the child into the world. The patient can never leave this behind, because the very act is embedded in her own beloved child.
It smells like a crime to me.
Jody Lynee Madeira. "Uncommon Misconceptions: Holding Physicians Accountable for Insemination Fraud." Law & Inequality: A Journal of Theory and Practice. 2019.
Alison Motluk. "Uncommon Ancestry." Hazlitt. 2017.
"Barwin's other casualties." HeyReprotech. 2018.
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