South Dakota bill would charge fraudulent fertility doctors with felonies

A bill that would make it a felony for fertility doctors to use their own or someone else's sperm without a woman's consent has passed the South Dakota House. It also allows for civil action to be taken against the guilty party.

Key Takeaways:

• The South Dakota House passed House Bill 1164, which makes it a felony to use reproductive material without the patient's consent.

• Anyone who uses "reproductive material from a donor if the patient did not give written consent to receive the reproductive material from the donor" or who "[i]ntentionally cause the use of the licensed health care provider's own reproductive material without the patient's written consent," could be charged with a Class 5 felony.

• The bill also allows for civil action to be taken against a licensed health care provider for violating the law.

• Recent news articles have shared stories of now-adult children learning that the men they believed to be their fathers were not, and that the fertility doctors their mothers trusted had actually used their own sperm instead of that of outside donors.

The Details:

House Bill 1164 passed the South Dakota House 65-0, with five House members "excused." It now heads to the Senate for review.

The bill states:

It is a Class 5 felony for a licensed health care provider, in the performance of an assisted reproduction procedure, to: (1) Knowingly cause the use of reproductive material from a donor if the patient did not give written consent to receive the reproductive material from the donor; or (2) Intentionally cause the use of the licensed health care provider's own reprodutive materal without the patient's written consent.

It also states, "It is not a defense to a violation of this section that the patient consented to an anonymous donor."

The bill allows individuals to bring a civil action against a licensed health care provider for violating the law. It lists several individuals who would be allowed to bring civil action, including:

• the patient who gives birth to the child

• the surviving spouse of the patient

• the intended parent of the child

• the child born

• "the donor whose reproductive material was used without the donor's consent or in a manner inconsistent with the donor's consent"

Individuals who are successful in their civil suits could be awarded up to $10,000 in damages and reimbursement of all costs associated with the assisted reproduction procedure.

Why It Matters:

As at-home DNA tests began to grow in popularity, cases of fertility doctors using their own sperm to impregnate patients began to emerge, along with lawsuits.

Gayle Fedele and her twin children, Kevin Phelps and Allison Vece, filed a lawsuit in 2024 against the estate of Dr. Joseph Plautz and unnamed medical facilities, claiming that in 1984, Fedele was a patient of Plautz and discussed with him the possible use of a sperm donor and artificial insemination. She wanted children, but her husband had undergone a vasectomy. She said that Plautz told her she could use sperm from a Wyoming-based sperm bank, but he ultimately inseminated her with his own sperm after leaving the room for about 15 minutes.

In 2023, an Idaho woman, Sharon Hayes, sued Dr. David R. Claypool for using his own sperm rather than that of a college student, whom he claimed resembled her husband.

Such stories of fertility fraud are shockingly common, and this new law aims to prevent them or get justice for victims in South Dakota.

Sadly, artificial insemination involved fraud from its beginning. The earliest recorded insemination procedure at a medical facility was carried out in 1884 by Dr. William Pancoast at the Jefferson Medical College in Philadelphia.

After finding that a woman's husband had a low sperm count, Pancoast chloroformed the woman and injected her with semen from a medical student without the woman's knowledge. When she became pregnant, she believed the child to be her husband's.

Pancoast ultimately told the husband, who agreed to keep it quiet, but in 1909, the medical student, Dr. Addison Davis Hard, told the now-grown child the truth and then published a letter in the journal Medical World, unleashing all of the details.

It is unknown if the child's mother ever learned the truth.

The Big Problem With IVF w/ Jennifer Lahl

The Bottom Line:

The artificial reproduction industry has been largely unregulated for decades.

The process of IVF and allowing for donor gametes has complicated things and has caused at times identity crises for the children conceived in this manner.

Penalizing those who commit fertility fraud is a good first step, but ultimately, artificial reproductive technologies promise miracles while concurrently dehumanizing and commodifying human beings.