The wrong egg

When a fertility clinic mistakenly placed a client's sperm in the wrong woman, the man sued for the right to be called the baby's father. Trouble is, the law says he's nobody's daddy.

By Angela Valdez

Read more: Fertility, Custody, Life

Nov. 16, 2006 | Matthew Hayes and Nico Swift went to a Portland, Ore., fertility clinic because, like 15 percent of the population, they had been unable to conceive the natural way. And like many of the Americans who feed the $3 billion a year industry, the couple paid thousands of dollars for the hope that science could undo the bad luck of biology. Instead, they found themselves in the middle of a man-made mess.

In a colossal mix-up that is still unresolved, the clinic accidentally used Hayes' sperm to inseminate the wrong woman, depositing his fresh gametes in the womb of a hopeful mother who had arranged to use a frozen sample from an anonymous donor. The woman got pregnant, but the hospital will not tell Hayes her name or even reveal whether a child was born. Hayes believes he has a valid claim to the baby. "They put my sperm into a stranger's vagina," he says. Hayes is in his 30s, a tall, broad-shouldered hipster, with flecks of gray in his brown hair. Normally confident, he crumbles easily these days. When asked about the common assumption that men regard their sperm as expendable, he begins to cry.

This fall, Hayes filed two lawsuits in Multnomah County Circuit Court. One seeks to determine whether a child was born, and if so, whether it's his. If it is, he is asking the court to declare him the legal father; Hayes has said he is willing to negotiate the terms of custody. His malpractice suit asks for $2 million from Oregon Health and Science University, which houses the fertility clinic, for worry and emotional distress. Hayes and his fiancie agreed to talk on the condition that their real names not be used. The second couple, referred to in court papers as Jane Doe and John Roe, declined requests for interviews through their attorney.

In past cases, say legal experts, most sperm donors who have sued for custody have lost their cases. That's because they signed away rights to custody when they made their donations. But this is far from a typical case. It raises the issue of what constitutes paternity in the cases of botched treatments, which may happen rarely -- and be discovered even less frequently -- but have happened in the past and are bound to happen again. Hayes was at the fertility clinic that day not to offer sperm to another couple as an anonymous donor, but to have his sperm delivered -- explicitly and only -- into his girlfriend's body. Yet he has legally become an anonymous donor against his will. In the case of a screw-up like this one, who gets to be the father of the baby?

Hayes' lawsuits comes amid a growing, yet unformed debate over how to regulate the fertility industry, which accounts for about 50,000 births through artificial insemination alone each year in the United States. Right now, federal scrutiny of the field is limited to regulation from the Food and Drug Administration over the handling of donated tissue, and the collection of clinic success-rate data by the Centers for Disease Control. Fertility industry associations lobby to maintain self-regulation in a field of medicine that may be changing too fast for the law to keep up with it.

The Oregon suits are the most recent example to reemphasize America's difficulty with talking about reproductive issues, whether the conversation is about abortion, cloning, fertility treatment or stem-cell research. Most Americans hew to one clearly defined argument, but as the Oregon case reveals, people experience these matters in less stark terms. Confronted with real-life dilemmas, personal and political philosophies devolve into complex outlooks that often appear contradictory: a pro-choice woman may consider the disposal of frozen embryos immoral; a woman who chose to have an abortion in her youth may mourn a miscarriage; or, as in this instance, a devout Catholic couple may rebel against their church to seek fertility treatment.

Estimates of fertility treatment malpractice are vague at best. Hayes' attorney points out that there's no way to measure the frequency of fertility mix-ups because usually there's no reason for suspicion. Cases involving different races are the most commonly exposed, with predictably complicated results. In 1998, a white Staten Island couple, inseminated with the wrong embryo, gave birth to two boys, one white and one black. They gave up custody of the black boy but fought to keep visitation rights, which a judge terminated in 2000. In 2004, a black nurse from Connecticut filed suit against a fertility clinic for inseminating her with sperm from a white man. Her fianci, also black, left her when she decided to carry the baby to term. Each of these cases point to the complex and deeply personal choices people make when they learn the child they have isn't the one they planned to have.

- - - - - - - - - - - -

Both couples -- Hayes and his fiancie and Roe and his wife -- had appointments scheduled at OHSU's fertility clinic on an overcast Saturday morning in September 2005. While they came for the same reason -- a low sperm count -- in many ways, the partners were very different. Doe and Roe were married; Hayes and his fiancie were not. Roe had to concede to using a donor's sperm; Hayes was able to use his own. Doe and Roe, who came from a county an hour away, were devout conservative Catholics; Hayes and his fiancie, who lived in the city, were pro-choice liberals and didn't belong to a church.

Hayes went to the clinic on his own early in the morning, dropping off a sample he had prepared at home so a tech could take it to be washed, a process that separates the sperm from the rest of the semen. Around the same time, Roe and Doe waited in a room with a bed with stirrups. Desperate after seven years of trying, they had decided to try insemination using sperm from an anonymous donor. Their choice -- which would set them back $815 -- violated a 20-year-old ruling from the Catholic Church forbidding the use of assisted reproductive technology.

Before the procedure began, court records show, the couple and their doctor signed a "sperm wash" form, indicating a transfer of fresh sperm from a man to his female partner. In fact, the form belonged to Hayes and his fiancie. Doe was inseminated with Hayes' sperm, and drove home with her husband.

Next page: The next day, the story changed. The woman was pregnant