Posted on April 19, 2019 at 11:34 AM
When Donald Cline opened a fertility medicine clinic in Indianapolis in 1979, infertility was a relatively new medical specialty. There were no big sperm banks, no online sites for choosing sperm donors by their physical or mental traits. Doctors usually found donors themselves, and most were medical students. Virtually all donations were anonymous, and patients were advised not to tell their children that the fathers who were raising them were not their biological fathers.
Several years ago a group of women filed a complaint against Cline with Indiana’s attorney general, saying that they had learned from a genetic testing website that they were half siblings, and that all of them had been conceived from sperm in Dr. Cline’s office. Cline originally denied using his own sperm to impregnate women who came to him for artificial insemination, but eventually he acknowledged that he had done so about 50 times. DNA testing confirmed he had fathered at least 48 children born between 1979 and 1986.
One of his biological daughters reported the group’s findings to local law enforcement. She was told that there was no law in Indiana against Cline using his own sperm to inseminate his patients. The only crime with which he could be charged was a felony, obstruction of justice for lying to state investigators, to which he pleaded guilty in December 2018. He was sentenced to jail for a year, but the sentence was suspended.
Although a doctor’s use of his own sperm is not a crime in Indiana – or most other states – it contravenes professional ethical norms. Moreover, Cline’s failure to inform his patients that he had used his own sperm to inseminate them violated their rights as patients. In general, patients have a legal right to give “informed consent” to any medical procedures performed on them. Informed consent includes the right to receive truthful information about anything that is materially relevant to their decision to accept or reject the treatment. Doctors may not withhold information because they think it could be upsetting to patients or incline them to refuse treatment that the doctor thinks is necessary. A doctor’s failure to get informed consent from a patient could be the basis for a medical malpractice suit, if the patient has been injured.
Were Cline’s patients injured by what he did? Cline might claim that, on the contrary, he benefited his patients. He increased their chances of getting pregnant, since he was using fresh sperm, which at the time had higher success rates than frozen sperm. It would have been extremely difficult to obtain fresh sperm from donors, since this would require coordinating the schedule of the sperm donor with the ovulation cycle of each patient.
Even if Cline did increase some patients’ chances of achieving a pregnancy, it was unethical not to inform his patients about using his own sperm. Many of them have expressed shock and emotional distress at learning what he did. One of his patients, now aged 66, says, “I feel like I was raped 15 times.” There can be damages for emotional distress unrelated to physical injury in medical malpractice, depending on jurisdiction. However, the harm must be both objectively discernable and severe. This may be difficult to prove.
Another conceivable basis for a medical malpractice suit is that Cline deprived patients of meaningful choices of physician and treatment. Had the couples been told what Cline intended to do, at least some likely would have gone to a different doctor for artificial insemination. His deception was clearly ethically unconscionable. Whether it could result in a successful action for malpractice is unclear. To my knowledge, none of Cline’s patients have filed malpractice suits against him. However, in Indiana, several people sired by Cline are lobbying state legislators to create a new crime – “fertility fraud” — that would punish the intentional misuse of reproductive material with up to two and a half years in prison.
Several of the donor-conceived children have filed civil lawsuits against Cline, claiming that they have been harmed by what he did. Some of them relay shock at learning that Cline is their biological father. One of the children worries that she might have “inherited the DNA of a man who would lie to his patients and abuse his position as a doctor.”
Others are upset to discover that they have multiple half siblings. Moreover, there could be more they do not know about. One has wondered, “Did you [Cline] really think . . . that we wouldn’t meet? That we wouldn’t maybe date? That we wouldn’t have kids who might date? Did you never consider that?” It is not clear whether fathering 50 children in a city the size of Indianapolis actually created a risk of consanguinity, that is, that the offspring might unknowingly marry and have children. Nevertheless, the possibility that this could have occurred, or might occur with their children, was very upsetting to some of them. If the children suffered emotional harm as the result of what Cline did, shouldn’t the children, as well as the parents, have a cause of action against Cline?
What makes the lawsuits of the children Cline sired problematic is the fact that, but for Cline’s use of his own sperm, none of these children would have existed. This is an example of what philosophers call the nonidentity problem. Had Cline used sperm donors, the resulting children would not be the people who are claiming that Cline wronged them. They would be different people, born from different sperm. In light of this, can they claim that they were harmed by what he did?
There are three possible takes on the nonidentity problem as it pertains to this case.
The first is to say that Cline did nothing wrong with the respect to the children he sired. Any claim by the children that he harmed them stems from a failure to realize the nonidentity problem. That is, the children are thinking that, if Cline had used anonymous sperm donors to inseminate their mothers, they would have been born anyway, and they would not have suffered emotional harm. They are simply wrong about this. The only way to prevent the emotional harm would have been to prevent their births. On this view, as long as the children do not wish they had never been born, they cannot claim that they have been harmed by what Cline did. And if they were not harmed, Cline did nothing wrong, as far as the children are concerned.
Philosopher Jeffrey Reiman takes a very different approach. In his view, the children are right to think that Cline harmed and wronged them (at least if their emotional distress is severe enough to constitute a harm), and this claim does not stem from a misunderstanding about identity. Rather, Reiman says, choices about procreation should be made from the Rawlsian perspective of the original position where identity is irrelevant. The question potential procreators must consider is, “What kind of life is the child likely to have?” Potential procreators have an obligation to any future children to avoid bringing them into the world in a seriously harmful condition. It does not matter who the children are. Cline violated the children’s rights if he brought them into the world in a seriously harmful condition, when he could have avoided this by using sperm from anonymous donors.
In my view, Reiman is partly right and partly wrong. He is right about how people ought to think prospectively about procreation. Cline’s failure to think about effects on the future children he created is an important part of the reason why what he did was morally wrong. But I do not agree with Reiman that the children were wronged by Cline. How can the children maintain that Cline wronged them? Given that they are glad to be here, they cannot plausibly wish that Cline had acted differently, since this would entail that they had never been born. A claim of rights violation that is completely severed from a wish that the wrongdoer had acted differently is hard to comprehend.
A more plausible approach, and the one that I take, is to acknowledge that Cline’s behavior was immoral, unethical, and blameworthy, but not a violation of the children’s rights. If there are to be any medical malpractice suits against Cline, these should be limited to the parents, not the children. Nevertheless, public outrage at his behavior is entirely appropriate, and the medical profession was justified in taking away Cline’s license and preventing him from ever practicing again.
Bonnie Steinbock, a Hastings Center Fellow, is a professor emeritus of philosophy at the University at Albany/SUNY.
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