For many, consumer DNA kits are a fun way to learn a little more about your background and, perhaps, build a family tree. For others, they can unearth deep-buried, often painful, family secrets – see, for example, the dozens (maybe hundreds) of people born through artificial insemination who are only now finding out that their biological father is not who they thought he was but the doctor who completed the procedure.
Take Kelli Rowlette. Rowlette had her DNA tested through the site Ancestry.com in 2017 and was shocked when the results revealed she was not related to her father. Instead, she found she was related to a man called Gerald Mortimer, who turned out to be the doctor who had delivered her as a baby. Rowlette submitted a lawsuit and it's subsequently come out that members of the Obstetrics and Gynecology Associates of Idaho Falls were aware of Mortimer's behavior.
But as Jacqueline Mroz reports for The New York Times, this Jerry Springer-esque type of revelation is not a fluke or a one-off. People across the US (and the world) are reaching the same conclusion, discovering a life-changing piece of information they would never have known if not for the growing popularity of consumer DNA kits.
In 2019, DNA analysis confirmed that Dutch fertility doc Jan Karbaat (who died aged 89 in 2017) fathered at least 49 children to women who saw him at his Rotterdam clinic. But even this large number may be an underestimate – he has claimed there could be as many as 60. According to reports at the time, it is thought he falsified data and descriptions of donors.
It is not entirely clear how common this sort of behavior (aka fertility fraud) is. The cases that have come to light represent just a tiny fraction of the millions of children born from IVF and other advanced fertility treatments. However, as more and more people choose DNA testing, additional examples of this type of malpractice may well come out of the woodwork.
"Unless it becomes routine to check babies’ DNA against their presumed biological parents’ DNA to make sure the genes match, we really won’t know how often this happens," Dr Julie Cantor, MD, JD, a lecturer in law at the UCLA School of Law who specializes in health law and reproductive rights, told IFLScience.
"Hopefully, fertility fraud turns out to be just a few cases – rogue doctors who, decades ago when they switched out the sperm, never imagined that home DNA testing would become a thing and that their secret would be found out. Not only is this behavior a grotesque breach of trust and a stark betrayal of physicians’ ethics, but nowadays, because of easy DNA testing, it’s just brazenly dumb."
Neither is it clear why fertility doctors are doing it in the first place. In some cases, it may be born of a lack of access to frozen sperm. In others, it might serve as a perverse power trip. Or, as Cantor puts it, "The answer may come down to two truisms – from Lord Acton’s 'power corrupts' to 'follow the money'.
"The most charitable take would be something like the patient couldn’t get pregnant and the available sperm was not leading to embryos or pregnancies, so he thought he’d help," she added. "A more nefarious take is that the doctor wanted to create his own children by the dozens. Maybe the truth is somewhere in between."
Still, it seems to be a big enough problem that some states have felt the need to step in and introduce new laws to deal with dodgy fertility practices such as these, albeit frequently at the behest of the victims themselves.
In Indiana and California, state governments have passed bills calling the use of unauthorized sperm a felony (the latter passed after couples at one fertility clinic found out their embryos were being implanted into others in 1995). Those affected have a right to sue those responsible. Meanwhile, in Texas, it has been declared a form of sexual assault. Anyone caught using unauthorized sperm (or unauthorized eggs and embryos) will be registered as a sex offender.
While the above examples go to show that, in some cases, proven incidents of fertility fraud have inspired legislation to address the crime directly, the process is slow and time-consuming. "You have to be patient and motivated," says Cantor. And so, often, victims have used more "garden variety" charges to get their stories heard and the perpetrators prosecuted.
"Unfortunately, the law has not quite caught up with the technology, and sometimes the available causes of action do not fit like a lock and key," explained Cantor.
"People have brought lawsuits alleging things like negligence, breach of contract, infliction of emotional distress, and tried to find a resolution through those garden-variety legal claims."
In 1992 – years before the dawn of at-home testing – The New York Times reported on an incident in Virginia, where a fertility doctor called Cecil B. Jacobson was put on trial for telling patients they were pregnant when they were not and, it later turned out, for using his own sperm to impregnate clients without their knowledge or consent. He was given five years in prison for 52 counts of fraud and perjury, the Washington Post reports. It is thought he could have fathered more than 70 children.
Now, similar cases are popping up in other states, including Vermont and Connecticut. The difference being they are emerging because children of artificial insemination (like Rowlette) are using consumer DNA kits.