Instead of using the donor sperm, Portugal now believes the doctor simply left the room, ejaculated into a cup, and proceeded to artificially inseminate her mother with his own sperm.
These laws, while an important and necessary step forward in what is a wildly unregulated industry, typically focus on the parent—the person who had the sperm implanted without their consent. “Doctor-conceived” children–-a term some who are born from this deceit use–-are often not recognized in fertility fraud laws; only Indiana and Colorado have included such provisions, and they are limited to civil court. But these children are harmed nonetheless. When a doctor-conceived child takes a DNA test and finds out their biological father isn’t who they thought, the revelation can be traumatic and leads to a slew of devastating questions, starting with their paternal family’s medical history. Further, because of the sensitive nature of both fertility challenges and this very personal violation, doctor-conceived children often feel empowered to speak out when their parents can’t or won’t.“What our mothers go through when these discoveries are made is very, very complicated,” said Eve Wiley, the biological child of her mother’s fertility doctor, Kim McMorries, and whose advocacy led to Texas passing a fertility fraud law. “They went to a fertility doctor in the hopes of having a child, and they got that, and are so grateful for it,” she told VICE News. “But it was also the product of deception and assault.” (McMorries didn’t respond to a request for comment. In 2019, he told 20/20 that “It was not wrong 33 years ago, as that was acceptable practice of the time.”)Only five states have “fertility fraud” laws, which, according to the Society for Assisted Reproductive Technology, make it illegal for a doctor to “use or implant reproductive material” without the patient’s consent.
Many people who have experienced this violation just want to move past the incident without protracted legal battles involving the abuse or media coverage. Portugal’s mother, for instance, doesn’t want to talk to her or anyone else about the genetic reality of Vandenberg being her daughter’s biological father. “She’s still holding on to this idea that it could be the man who raised me,” Portugal said. Because her mother doesn’t want to be involved in any legal action, Portugal doesn’t have standing to bring suit as a child due to current fertility fraud laws in California. (Portugal’s mother did not respond to a request for comment.) Other biological children of doctors have found themselves in the same position. When Paul, whose name has been changed to protect his privacy, found out through a 23andMe test that his biological father was his mother’s fertility doctor, he wanted to take legal action, but the doctor, Edwin Delfs, had a history of heart problems and died of congestive heart failure in 2002. Paul, 37, believes that his high cholesterol and other heart related issues are likely inherited from Delfs; the doctor’s obituary notes that when he was in his 30s, he underwent his “first triple bypass surgery.” When Paul contacted an attorney about suing the doctor’s estate, he was told that he didn’t personally have a case, but his mother did. It became a moot point, as Paul’s mother told him she won’t take legal action and just wants to move on. (When approached for comment, an attorney for the Delfs family said, “This is not a story that has anything to do with the Delfs family. The doctor died 18 years ago, and family members had no knowledge of what is claimed.”)Anytime you’re concealing something from a patient, you’re going against medical ethics.
“My mouth just dropped open,” Portugal said. “Up to then, I tried to be positive, like hey, I came from you and you’re not being a douchebag to me, but I couldn’t believe he lied about his family’s medical history the first time I called.” By the time the conversation ended, Portugal said Vandenberg made it clear that he had no interest in communicating further with her. Vandenberg retired shortly after his call with Portugal, though he still has an active medical license. (VICE News called four different numbers listed for Vandenberg, all of which were disconnected, and tried five different emails associated with Vandenberg, two of which bounced back, three of which got no response. A message left for Vandenberg’s son was also not returned.)“I couldn’t believe he lied about his family’s medical history the first time I called.”
“I realize it can be difficult for donors, especially those who donated anonymously,” Madeira said. “But at some point, we have to put the onus on others and really look at, who stands to lose the most? And that’s the people who would get these genetic conditions and those who would be parenting them.”But incorporating those rights into fertility fraud legislation can be difficult. Florida State Senator Lauren Book, who successfully spearheaded Florida’s fertility fraud legislation after hearing Wiley’s story, says the initial legislation was much broader than what ultimately passed. “We wanted to include counseling for the children if it was found that this type of fraud occurred,” Brook said. But she found that the law could only pass if it was limited to the mother. “It was very challenging,” she told VICE News. “But the mom is the one who has been [de]frauded.” The law passed without provisions for doctor-conceived children. Adam Wolf, a prominent attorney in California whose firm Peiffer Wolf Carr & Kane, has represented families in approximately 20 of these kinds of cases. “We represent both moms and children. After all, the children have suffered damages … But when it comes time to filing [sic] suit, we typically file on behalf of the mom only. The mom is the one who was deceived by the doctor, who had a contract with the doctor, and who was promised something by the doctor (i.e., sperm that was not the doctor’s),” Wolf said in an email.Those who were conceived via a sperm donor, whether through fertility fraud on the part of a doctor, or through an anonymous sperm donation, don’t have an explicit legal right to the donor’s medical records.
After a 23andMe test revealed that Yugend, who died in 1983, was Hansen’s biological father, Hansen fell into a depression. “It was such a dark time,” Hansen said. “My father was Norwegian, and I grew up with a very rich Norwegian heritage. We would have Lutefisk on holidays and all those kinds of things. I don’t do that anymore; it doesn’t feel true to me.” For Hansen, Portugal, and other children who are doctor-conceived, these foundational aspects of their identity evaporated with the click of a mouse. “You grow up with this knowledge of where you came from and where you belong. It gives you some stability in life. I lost that.” Yugend’s family did not respond to a request for comment.The creation of any fertility fraud laws are a huge move forward in complicated industry, but many advocates believe more and broader legislation needs to happen at both the state and federal levels. Book, the state senator, told VICE News that the fertility fraud law she passed in Florida is “a first step.” Book’s twins are a product of IVF, and she is still shocked at the unregulated industry. “It blew my mind,” she said. “There are no guardrails, no regulation.” It’s an issue Book wants to keep working on, knowing that misconduct isn’t limited to doctors using their own sperm to impregnate patients. “When I wanted to conceive, there was nothing I wouldn’t pay,” Book said. “And there are a lot of predatory doctors out there who will push expensive procedures that do absolutely nothing.” In addition to more regulation and oversight, advocates believe the fertility industry needs to abandon the concept of the anonymous sperm donor. “There is no such thing as anonymity anymore,” said Kara Rubinstein Deyerin, a non-practicing attorney and CEO of Right to Know, an organization dedicated to updating laws around anonymous donors and genetic identity. “Not just because it’s not plausible anymore, but also because it’s not beneficial for the child.” Paul claims that if his parents had told him he was conceived through donor sperm, the shock and emotional turmoil would have been greatly decreased. “It wouldn’t make what Delfs did right,” Paul said. “But acceptance would have been a lot easier.” If there’s anything the flood of fertility fraud cases makes clear, it’s that some secrets are no longer kept secret. “These doctors never imagined a world in which people could order home DNA tests over the internet and look up anyone on social media,” Paul said. “They never had a reason to think they wouldn’t get away with this.”“You grow up with this knowledge of where you came from and where you belong. It gives you some stability in life. I lost that.”
Some advocates also think it is incumbent upon fertility doctors to sit down with patients who are using donor sperm or eggs and discuss what they are going to tell their future child. “The goal of the fertility industry is to get someone pregnant,” Wiley said. “After that, they don’t care. They’re not telling parents, hey, when this baby grows up, they’re going to want medical information, they’re going to want genetic identity.” Wiley believes that transparency and increased regulation are essential to an ethical fertility industry. When that doesn’t happen, when genetics are kept secret only to be discovered through DNA tests, the burden falls on the already traumatized child. “Every time a new sibling pops up—the last one was just two weeks ago—I'm terrified. I have to be the one to tell them what that means,” Wiley said. “I have to relive this over again. Are they going to reject me? Are they going to want to remain anonymous? No one is giving us guidelines for how to navigate those new relationships.”For Portugal, the most devastating part is not just the broken biological connection to her father, it’s the things she’ll never know because she can’t ask him. “My parents divorced right after I was born,” Portugal said. “I can’t stop wondering if he could tell I wasn’t his, if that’s why they divorced.” Growing up, she and her father were close, but now her belief in that relationship is profoundly shaken. “I wish I could ask him; did he love me less because I wasn’t his?”If there’s anything the flood of fertility fraud cases makes clear, it’s that some secrets are no longer kept secret.