Does Fertility Fraud Count As Medical Malpractice?

Posted on: 10 June 2021

The rise of 23andMe and other genealogy businesses has uncovered a type of fertility fraud involving doctors using their own sperm—instead of donor sperm—to impregnate patients. Although this is unethical on many levels, it may be difficult to win a medical malpractice lawsuit in this type of case, and here are the reasons why.

Actions May Not Satisfy Negligence and Injury Requirements

A medical malpractice lawsuit requires plaintiffs to show the doctor's actions were negligent, meaning the doctor deviated from the standard of care expected in their line of work and that that deviation resulted in injury to the patient. While substituting their sperm for donor sperm in a fertility treatment would seem to fit the bill, whether it does or not depends on the circumstances of the case.

For instance, in cases where patients preselected specific donors to use, an argument could be made that the doctors were negligent because they didn't use the genetic material the patients wanted. However, in cases where donor material selection was left to the doctor, it may be harder to prove negligence since the doctor did follow through and provide sperm as agreed, even though it was their own.

Additionally, you must prove that the doctor's negligence caused a quantifiable injury; that the doctor using their own sperm resulted in harm to you or your family. For instance, the child conceived developed health problems or disorders that they wouldn't have had if the doctor had used the donor sperm as agreed or your marriage was destroyed because your spouse believed you cheated based on the paternity test.

If the child grew up relatively healthy or there weren't any other negative outcomes caused by the mismatched DNA, then the case may be more fitting for a breach of contract lawsuit rather than medical malpractice.

May Be Difficult to Quantify Damages

Even if you are able to show the doctor was negligent and that negligence caused injury, you still have to prove you suffered damages as a result. Going back to a previous example, if the child developed health problems they otherwise wouldn't have, you can quantify your damages based on the amount of money you spent on the child's healthcare that you may not have spent if the doctor used the right donor material.

If you didn't bear any costs beyond the money, time, and effort required to raise a child, then you may have a tough time proving you suffered damages as a result of the doctor's actions.

Pursuing fertility fraud as a medical malpractice lawsuit can be tricky because there are several elements that must align in the right way to qualify as this type of case. It's a good idea to connect with a medical malpractice attorney who can advise you on the best course of action to take in this type of situation.

For more information, reach out to a medical malpractice lawyer.