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.

Published November 16, 2006 12:39PM (EST)

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.

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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.

Later that morning, according to Hayes, he and his fiancie returned to the clinic, prepared to undergo their third cycle of intrauterine insemination. A nurse came in and informed them that their sample had been dropped and spilled. Hayes says he later learned that was untrue. The sperm had not been spilled but had been inserted into Doe's body. But at the time, Hayes and his fiancée just looked at each other, knowing they'd have to suffer through another month of testing and hormones before they could try again.

That night, Doe and Roe got a call asking them to return to the fertility clinic. When they came back the next day, the woman registered positive on a pregnancy test. In a detailed affidavit, the couple claims a doctor forced Doe to take a morning-after pill (it's unclear whether she took a second dose), and offered the fiercely religious Catholic a free abortion if she became pregnant and two free fertility sessions if she didn't. It's still unknown if she had the abortion; verification that a child was born is part of what Hayes is suing to learn.

Kathleen McFall, senior communication coordinator for Oregon Health and Science University, would not comment on either couple's visits to the clinic. "This is a sensitive and ethically complex situation," she says. "Like all healthcare providers, OHSU is prohibited from talking about any patient by a federal law called the Health Insurance Portability and Accountability Act."

Today, Hayes and his attorney believe it is unlikely that the couple aborted the fetus. In court papers, Doe and Roe repeatedly emphasize their devotion to their conservative Catholicism. It's clear that their decision to visit OHSU came as a last resort -- a choice they wouldn't dare reveal to their family or the church. Roe testified that "the only individuals on the planet with whom he has discussed his infertility problems are his wife, his doctors at OHSU, employees of OHSU  and his attorney." He said he hadn't told anyone else in his family about his infertility, or the fact that he and his wife had sought treatment. Revelations of that information, he said, would cause "him and his family irreparable harm."

More than two months passed before Hayes and his fiancie learned about the mix-up. On Nov. 22, Hayes received a letter by certified mail, asking him to visit the hospital alone. Barbara Glidewell, OHSU's ethicist and patient advocate, met him in the lobby. She led the way to a conference room where the hospital's chief medical officer, Roy Magnusson, explained that Hayes' sperm had been used to inseminate another woman. He told Hayes she wasn't pregnant.

Late that night, his fiancie called on the way home from a class. "So how'd it go?" she asked. He promised to explain when she got home. "He was all flipped out," she says. "I've never seen him so upset. Never seen him crying like a baby. I tried to calm him by saying at least she's not pregnant."

The next day, at a second meeting with Glidewell and Magnusson, the story changed. The woman was pregnant.

"It was a moment I'll never forget," Swift says. "I thought he [Hayes] was going to kill that doctor. He slammed his fist down into the table, and he's a big guy." They both stood up, started yelling. Swift says she got in the doctor's face, told him he'd be hearing from their attorney, and left with her fianci. The hospital later offered them $25,000, she says, to let the issue lie. The couple didn't want the money, but they struggled with what to do for several months. Should they go to a lawyer? The media? Meanwhile, the state board of medical examiners opened an investigation into the case. As with most medical licensing boards, the investigation will not be made public unless and until discipline is imposed.

By the time Hayes lodged his complaints in Multnomah County court, his maybe-child, referred to as Baby Doe in court papers, would have been 3 months old. His legal claim begins with the assumption that genetics equals a sort of quasi-property claim, that depositing sperm in a cup holds at least as much sway in determining parenthood as having sexual intercourse with the baby's mother. "There could be a kid in the world that is half mine or part mine," he wrote in an e-mail. "I don't even know how to describe this. I'll always be looking at every child I pass, checking its age, features and wondering."

Aside from his supposed-baby's filial rights, Hayes raises a raft of practical what-ifs. What if the child wants to know his biological father? What if he needs to know about genetic disease risks? What if he sees a familiar face in the grocery store? "It's so layered. It's unbelievable," his fiancie says. "There could be a million different stories."

Although Hayes has sought to protect his own privacy, his paternity suit ultimately aims to undermine another couple's claim to a very similar desire for anonymity. Doe and Roe argue that their privacy rights trump biology. "That is it. There is nothing further to decide," writes their lawyer in a rather venomous brief. "Any child born as a result of the alleged artificial insemination would be the son or daughter of John Roe and Jane Doe as a matter of law." And indeed, state and federal laws most likely side with Roe and Doe. Under Oregon artificial insemination law, and similar laws in many other states, a child born in wedlock belongs to the man married to the woman who gave birth. The law ensures that a man married to an artificially inseminated woman is the father. There is no space on a birth certificate form for genetic fathers.

Hayes' paternity suit is based on the same idea that lies behind bans against anonymous donation -- which exist in Australia and the United Kingdom -- the idea that children ought to know the identities of their genetic parents. But if the U.S. had a similar law requiring children to know their genetic parents, Doe and Roe might not have felt free to make the reproductive choice they wanted to make.

"We have to be extremely cautious about calling for government regulation on the basis of other people's choices," cautions Alta Charo, a bioethicist from the University of Wisconsin Law School. "The worry is that we're going to get in the business of letting the government say what kinds of choices are morally sufficient."

As much as this story is about whether a donor has the right to know if he has a child -- and can parent that child -- it is also about the opposite right: whether hopeful parents have the right to remain anonymous. In this case, one couple needed the assurance of that right to make their preferred reproductive choice.

The industry itself has latched onto suggestions that more rules signal an erosion of reproductive choice. "Some religious conservatives would like to have the government decide who has a child and why," says Sean Tipton, a spokesman for the American Society of Reproductive Medicine. Anyway, he says, there's no need for more rules: "There's a ton of regulation!" Actually, there is about as much regulation of the fertility business as there is of the rest of medicine. Doctors in all fields face two main sources of oversight: the state licensing boards that can sanction doctors for violating ethics rules, and malpractice lawsuits, which, theoretically, keep doctors in line with the threat of monetary damages.

Should the fertility industry be subjected to a higher level of scrutiny than other medical fields? Simply by virtue of creating new life, the field sets itself apart; using medicine to solve one problem, infertility treatment invariably creates new, non-medical problems, such as debates over parental rights.

Leslie Bender, a law professor at Syracuse University, has explored the statutory options for hemming in fertility treatment. She says beefed-up rules about levels of scrutiny in clinics might have prevented this case from occurring; she also recommends forming legal guidelines for how to settle disputes in specific cases of genetic mix-ups. "There are circumstances in which the government has the right to regulate the reporting of mistakes, like this case," Bender says. Consider, for example, the interests of a child who, under the law, may never even know he or she was conceived in a clinic. "There's the potential for such ripples of damage. Look at all the people who are messed up in this. I don't think that's an interference with reproductive choice."

While Hayes and Swift have said their situation bolsters the argument for ratcheting up the rules, another solution may be something less tangible: a reordering of how we view the family. With or without stricter enforcement and better practices, mix-ups will continue to happen, donors will change their minds, children will demand to know their parents. In that view, many ethicists, including Charo, believe it's time to stop thinking about families as simple equations of two parents plus X children -- especially if we , as a society, want to take advantage of the solutions offered by the fertility industry.

"People should know about all the adults involved in their conception," Charo says. "We need to recognize multi-parent situations. It's messy, but from my perspective, it's just legal fiction to write rules that erase people from personal histories." Charo is hopeful that the conflict will work itself out as the industry adjusts and family law adapts. She seems less optimistic about the fate of Oregon's Baby Doe. "This is a case," she says, "that just doesn't have a happy resolution."

Hayes and Swift have enrolled in a new fertility clinic and are still trying -- so far unsuccessfully -- to get pregnant. And although Hayes is frustrated with his legal opponents for refusing to cooperate with the paternity test, he believes the couple is basically in the same position as he is -- thrown into an impossible situation by human error; a mistake that surely will occur again.

By Angela Valdez

Angela Valdez is a reporter at The Stranger.

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