Jacoba Ballard was conceived in a brick office building on 86th Street in Indianapolis when fertility doctor Donald Cline inseminated her mother with his own sperm instead of the donor sperm he had promised.
To Ballard, it was an offense akin to rape — one Cline is suspected of repeating with as many as 50 other women. But the law in Indiana, as in most other states, was not written to account for such a crime. So Cline was charged with obstruction of justice, and accused of false advertising and “immoral conduct” in the delivery of services. He lost his medical license, was fined $500 and received a year’s probation.
“My mother was violated. He took advantage of her in one of the most vulnerable moments of her life,” Ballard said. The sentence, she said, was “not enough to send a message.”
Now Ballard, 38, is part of a growing movement pushing for stronger safeguards on assisted reproduction and tougher penalties when things go wrong. Led by donor-conceived people who have discovered that their very existence was marred by fraud or mistakes, this movement is raising tough questions about the responsibility of the fertility industry that the legal system is ill-equipped to answer.
In Ottawa, for example, donor offspring are lobbying for a ban on anonymous sales of reproductive material following revelations that a fertility doctor there used his sperm to impregnate 11 women. In Utah, the state legislature has expanded the definition of incest to include a person who knowingly provides sperm or a human egg to a related person for in vitro fertilization.
And in Indiana, Ballard and other people sired by Cline are lobbying state legislators to create a new category of crime known as fertility fraud that would punish the intentional misuse of reproductive material with up to 2½ years in prison.
Sean Tipton, chief policy officer for the American Society for Reproductive Medicine, said errors and fraud in the industry are rare, and are easily addressed under existing laws. Clinics maintain rigorous safety protocols to ensure that the correct genetic material is transferred, that donors are properly screened and that medical workers adhere to stringent ethical standards, he said.
“It’s terribly obvious that for a physician to substitute his own sperm for donor sperm is an awful thing,” Tipton said. “But it seems to me that there are existing legal remedies.”
Still, many families who have borne children through assisted reproduction — especially using donor sperm or eggs — have struggled to recover from serious lapses, including embryos switched before birth, babies sired by the “wrong” father, and children who inherit serious, undisclosed medical issues.
Justice is difficult to find, or even define, in such situations. Prosecutors and the courts have been reluctant to weigh in, especially when a child is healthy. Taking sides, in their view, could label a child “damaged” and make an implicit judgment about the relative worth of one life over another.
Many of the children, meanwhile, are left grappling with a lifetime of trauma, knowing their existence is not what their parents intended.
“These are horrible, horrible cases, and unfortunately the law really hasn’t caught up with the enormity of the problem,” said Ron Norman, an attorney hired by a family in Santa Barbara, Calif., whose daughter, Brittany, was described in one news report as “the poster child for sperm gone wrong.”
Brittany Johnson was 6 in 1995 when her parents first discovered blood in her urine. After consulting multiple specialists, they discovered she had autosomal dominant polycystic kidney disease , which causes cysts to develop in the kidneys.
The condition is hereditary and serious, typically causing abdominal pain, high blood pressure and, eventually, kidney failure. Many patients require a transplant. After Brittany’s mother tested negative for the gene that causes disease, doctors pointed to the sperm donor.
The donor, No. 276, had been advertised as healthy. But at some point after Johnson was born, her parents inquired about buying additional sperm to conceive a sibling for her. The sperm bank, California Cryobank, said it had stopped selling the donor’s sperm after learning his aunt had kidney issues.
As the girl’s condition worsened, her parents sued the sperm bank in 1995 for more information, making her case one of the first to be fought in the public spotlight. The case ultimately settled out of court, with the donor agreeing to a deposition.
Johnson said they learned that several of the donor’s relatives had kidney disease, but he refused to answer more detailed questions about his health.
California Cryobank did not admit fault, and a spokesman declined to comment on the case, citing terms of the agreement with Johnson’s family. The spokesman said the sperm bank maintains a rigorous screening process that includes expanded genetic testing, formal assessments by a psychologist, and criminal background checks.
Today, Johnson is 29, and her health is stable. But she worries what will happen years from now, when many people with her condition typically get sicker. Looking back on her childhood, she is angry about all that her family endured.
“I didn’t feel like I knew my body, and I didn’t feel like there were a lot of places to go for answers,” she said.
She hates it when people tell her she should be grateful just to be alive.
“It’s absurd,” she said. “If I wasn’t here, my parents would have a happy, healthy child.”
Sarah Lin was older, 41, when she learned of her origins. On a whim, the stay-at-home mother from Washington state sent her saliva off to Ancestry.com to get her DNA analyzed. Her parents had told her when she turned 25 that she had been conceived with donor sperm. Back then, she hadn’t given it much thought. But as the years passed and she had two children of her own, she become curious about her origins.
Her dad had been a colonel in the U.S. Army stationed at Fort Knox in Kentucky when her parents sought help for infertility at a local clinic. Their doctor recommended donor sperm, and told them he had found a donor who was similar in looks and personality to her father. The only other piece of information offered was that the donor could trace his roots back to the founding families of Virginia. Lin’s parents were thrilled, and she was born nine months later.
After Lin got her DNA results in the summer of 2017, she began working with friends online to find her biological father. After some sleuthing, they located the likely donor.
When Lin emailed him, the man replied that he had never donated sperm. However, he and his wife had visited the same fertility clinic the summer Lin was conceived. Lin and the man soon connected over the phone, and they came to the stunning conclusion that the sperm samples the man had produced to create his own family had probably also been given to Lin’s parents.
“He was in a bit of shock. Very open, very curious about me,” she recalled. “But he also felt very violated.”
Neither Lin nor the donor has pursued legal action. A spokeswoman for the fertility clinic declined to comment on the case, saying there are “no records available for clinical care that far back.”
Lin was left with mixed feelings. Though she was excited to find her biological father, she is angry about the circumstances. The two have not spoken since.
“I would have never chosen to be conceived from any stolen sperm,” Lin said. “I am grateful for my life, but it is horrible what happened to him.”
Payton Zinkon was 3 when her name made headlines around the world. Because of a lab mix-up, she was conceived with sperm from Midwest Sperm Bank Donor No. 330, who is African American, instead of Donor No. 380, who is white.
Her story came to light in 2014, when her mother, Jennifer Cramblett, and her partner, Amanda Zinkon, sued the sperm bank under Ohio’s “wrongful birth” statute, arguing that while they loved their daughter dearly, they were ill-equipped to raise a biracial child.
The “wrongful birth” law typically applies when a medical provider fails to provide adequate information or counseling about the risks of having a child with a serious illness. In her lawsuit, Cramblett — who grew up in an all-white environment — described “numerous challenges and external pressures associated with an unplanned transracial parent-child relationship.”
The case drew emotional commentary about designer babies, prejudice in America, and the randomness of motherhood.
“Having a baby isn’t like ordering a pair of jeans — you can’t return it if it isn’t to your liking. Anyone who thinks they are entitled to exactly the child they envisioned — and are prepared to fly to court if they don’t get it — isn’t fit to be a parent,” Boston Globe columnist Jeff Jacoby fumed.
The Guardian’s Julie Bindel was more sympathetic: “I know white people who have adopted black children. . . . At least one of these couples, when told a black child would be placed with them, quite seriously considered whether they would be doing right by the child.”
After the Illinois sperm bank apologized and issued a partial refund, Cramblett’s lawsuit was thrown out by a DuPage County judge in 2016. The Illinois Appellate Court upheld that decision in June 2017.
Midwest Sperm Bank declined to comment on the case. The company sent Cramblett a refund check for the six vials of sperm she had purchased and a letter of apology in 2011, while Cramblett was still pregnant with Payton.
Now 6, Payton is by all accounts adored by her family. She plays softball and has become a familiar face in the small, mostly white town where her mother grew up and her grandmother still lives. She is unaware of the controversy, and her family hopes to shield her from it for as long as possible.
Cramblett said she is disheartened that stories about the case have focused on race rather than the fertility industry’s failures.
“All I wanted was accountability,” she said. “They made a mistake and refused to acknowledge their mistake.”
The prosecution of Cline, the Indiana fertility doctor, is one in a string of recent scandals involving doctors using their own sperm to father children with their patients.
In Idaho Falls, Gerald Mortimer, an OB/GYN, appeared in court in August to answer charges of medical negligence, fraud, battery, intentional and negligent infliction of emotional distress for allegedly using his own sperm to impregnate a patient.
In Ottawa, 11 patients who claim their DNA tests show their children are related to Norman Barwin, their fertility doctor, filed a class-action claim against him in April.
And in Rotterdam, last year, 12 men and women who were conceived with sperm from a fertility center alleged that its director is their father.
Ballard, an emergency medical worker, first came to suspect Cline was her biological father in 2015 after she took a mail-away test and found that some of his relatives were her relatives too. She took her concerns to a few half-siblings she had met online.
“We knew something wasn’t right. We all started talking, and all of our parents had been told the same thing: ‘I’m going to use a medical resident,’ ” she recalled.
Cline’s attorney declined to comment on the case.
The group confronted him one day at a restaurant in downtown Indianapolis. She remembers him wearing a gun under his sweater and carrying a piece of paper with a Bible verse, Jeremiah 1:5. “Before I formed you in the womb, I knew you,” he read to them. “Before you were born I set you apart.”
Ballard, who is Catholic, cut him off. “I said, ‘Don’t use my God to justify your actions.’ ”
“There were a lot of tears shed. But not because of meeting him,” she said. “Because of our situation.”
Along with several half-siblings, Ballard has since filed complaints with the Marion County prosecutor and the Indiana attorney general. She has found roughly 50 people born between 1974 and 1987 who believe Cline is their father.
Among them is Matthew White, 35, an environmental consultant who learned he was donor-conceived when he was 15. Growing up, he said, he and his mother would often pass the building where Cline’s clinic was located, and she would tell him how happy she was the day she found out she was pregnant with him.
Because his family, which includes both a mother and father, always felt complete, White said he never sought out information about his donor. But then, while browsing the Internet in 2016, he spotted a news story about Cline and noticed that an accompanying picture of the doctor looked strikingly like him.
“I was thinking, ‘What is going on? This can’t be true,’ ” he recalled, adding that the discovery left his happy childhood memories marred by a “black scar” of deception.
Together, Ballard, White and other half-siblings lobbied members of the Indiana state Senate to introduce the fertility fraud bill. The measure died in committee earlier this year, but the group is pressing legislators to introduce it again when the legislature convenes in January.
Cline “knew what he was doing,” White said. “It was calculated, and he got away with it. We can’t let this continue to happen again.”
Law professor Jody Lyneé Madeira, co-director of the Center for Law, Society & Culture at Indiana University in Bloomington, said the case represents the “gravest of conflicts of interest into the physician-patient relationship.” While there are numerous legal reasons Cline was not charged with rape — including the age of the crime — Madeira said there is a compelling moral argument for changing the law to punish Cline’s actions.
“Our gut tells us something is really, really wrong about this. He inserted his family lineage into the patient without their consent,” Madeira said.
“The law is not set up to handle claims like this. But that doesn’t mean it shouldn’t be.”