Indiana Health Law Review Volume XVIII 2021 Number 1 NOTES DADDY DOCTOR: WHY THE RIGHTS OF INTENDED PARENTS ARE NOT ADEQUATELY PROTECTED IN INDIANA* RANI AMANI** I. INTRODUCTION In 2019, Almost Family, a television series, premiered.1 It follows the story of a woman whose father, a fertility doctor, secretly inseminated several of his patients with his own sperm.2 Rather than focusing on the obvious ethical dilemma, the show seems to make light of the situation as just another obstacle that was caused by foolish but good intentions.3 Unlike Almost Family’s depiction, fertility fraud is a serious violation. For thirty-five years, Liz White (“White”) believed that her son’s biological father was an anonymous sperm donor.4 White and her husband resorted to sperm donation in order to become parents, and they thought that their sperm donor was an anonymous medical resident.5 However, White later learned “that the sperm had come not from [an anonymous donor] but from the fertility doctor who had inseminated her.”6 This fertility doctor was Dr. Donald Cline (“Cline”), who ran * This Note was completed in February 2020. ** J.D. Candidate, 2021, Indiana University Robert H. McKinney School of Law; B.S., 2015, Purdue University. 1. Almost Family, IMDB.COM, https://www.imdb.com/title/tt9165444/ [https://perma.cc/ 93TD-UEGY] (last visited Feb. 1, 2020). 2. Kelly Lawler, Fox’s ‘Almost Family’ is a Drama Disaster That Makes Light of a Heinous Crime, USA TODAY (Oct. 2, 2019), https://www.usatoday.com/story/entertainment/tv/2019/ 10/03/almost-family-review-fox-drama-unmitigated-disaster/3817928002/ [https://perma.cc/AV8R- 6BUJ]. 3. Justin L. Mack, Why Fox’s ‘Almost Family’ Angers Some Children of an Infamous Indiana Fertility Doctor, INDY STAR (Oct. 23, 2019), https://www.indystar.com/story/news/health/ 2019/10/23/real-almost-family-donald-cline-case-no-comedy/3995192002/ [https://perma.cc/JS6L- S7SP]. 4. Shari Rudavsky, ‘I Was Raped 15 Times and Didn’t Even Know It’: Fertility Fraud Bill Advances, INDY STAR (Jan. 23, 2019), https://www.indystar.com/story/news/2019/01/23/donald- cline-aftermath-fertility-fraud-bill-advances-indiana-senate/2656610002/ [https://perma.cc/3XKQ- FDYS]. 5. See id. 6. Id. 124 INDIANA HEALTH LAW REVIEW [Vol. 18:123 an Indianapolis-area fertility clinic during the 1970s and 1980s.7 He fathered more than fifty children.8 In 2017, Cline “pleaded guilty to two felony obstruction of justice charges, acknowledging that he lied to state investigators when denying . . . accusations that he used his own sperm” to inseminate patients.9 Consequently, he “was [solely] given a one-year suspended sentence.”10 Marion County prosecutors did not file other charges against Cline because they felt that they were limited in the charges that they could pursue.11 At the time, Indiana did not have a law against fertility fraud.12 Though, this changed in 2019, after Cline’s former victims, including White, combined efforts to modify Indiana law to protect other individuals from doctors similar to Cline.13 Fertility fraud manifests when an adult learns, through genetic testing, that he was not only donor-conceived but also doctor-conceived.14 Hence, the donor- conceived child’s sperm donor is actually his parents’ fertility doctor. Cline, unfortunately, is not the only doctor to have committed fertility fraud in the United States.15 Memorably, Dr. Cecil Jacobson (“Jacobson”) “defrauded certain women and their husbands by representing that the women would be inseminated 7. Mihir Zaveri, A Fertility Doctor Used His Sperm on Unwitting Women. Their Children Want Answers., N.Y. TIMES (Aug. 30, 2018), https://www.nytimes.com/2018/08/30/us/fertility- doctor-pregnant-women.html [https://perma.cc/4M4U-RK7V]. 8. Sarah Zhang, A Decades-Old Doctor’s Secret Leads to New Fertility-Fraud Law, ATLANTIC (May 7, 2019), https://www.theatlantic.com/science/archive/2019/05/cline-fertility- fraud-law/588877/ [https://perma.cc/JQC7-PTBK]. 9. Zaveri, supra note 7. 10. Tom Davies, No Jail for Fertility Doctor Who Lied About Using Own Sperm, ASSOCIATED PRESS (Dec. 14, 2017), https://www.apnews.com/128c7319ef774b3ab90b6c 99e0986c5d [https://perma.cc/5SZ9-LUX5]. 11. Tom Davies, Indiana Doctor’s Offspring Pushing State Fertility Fraud Law, ASSOCIATED PRESS (Jan. 23, 2019), https://www.apnews.com/91f17c7b87fa4039b109bd871e656e62 [https://perma.cc/6P72-XZVV]. 12. Davies, supra note 10. 13. Rudavsky, supra note 4. 14. Professor Jody Lynee Madeira, Address at the Indiana University Robert H. McKinney School of Law Faculty Colloquia Series (Nov. 12, 2019) (notes on file with the author) [hereinafter Faculty Colloquia Series]; see Jody Lynee Madeira, Fertility Fraud: An Update, AM. SOC’Y REPROD. MED. (Oct. 21, 2019), https://www.asrm.org/news-and-publications/news-and- research/legally-speaking/fertility-fraud-an-update/ [https://perma.cc/P9LC-4EY3]; see also Dov Fox et al., Fertility Fraud, Legal Firsts, and Medical Ethics, 134 OBSTETRICS & GYNECOLOGY 918, 918 (2019) (defining fertility fraud as “a doctor’s failure to obtain his fertility patient’s consent before inseminating her using his own sperm”). 15. Robert T. Garrett, Fertility Fraud is Real. The Texas Senate Approved a Bill to Make It a Crime, DALL. MORNING NEWS (Apr. 11, 2019), https://www.dallasnews.com/news/politics/ 2019/04/11/fertility-fraud-is-real-the-texas-senate-approved-a-bill-to-make-it-a-crime/ [https://perma.cc/X62R-LPXB]. 2021] DADDY DOCTOR 125 with sperm from an anonymous donor.”16 Instead, “Jacobson inseminated the[] women with his own sperm.”17 Likewise, Drs. Kim McMorries, Gerald Mortimer, John Coates, Paul Jones, and an anonymous Sacramento doctor inseminated their patients with their own sperm, rather than sperm from anonymous donors.18 Similar cases exist around the world,19 and technology such as direct-to-consumer (“DTC”) genetic testing and social media will certainly continue to shed light on this type of wrongdoing.20 The United States fertility industry is largely unregulated,21 and Cline’s misconduct highlights a significant problem with it. The number of fertility fraud cases and incidents of sperm bank negligence is rising.22 As a result, such beg the question: should the United States fertility industry be better regulated to protect the rights of intended parents and even donor-conceived children?23 Thus far, California, Indiana, and Texas have tried to tackle this issue by implementing fertility fraud laws,24 and Colorado has proposed legislation to make fertility fraud a felony.25 While Indiana’s fertility fraud law may be the first of its kind,26 it inadequately protects the rights of intended parents. This Note makes the novel 16. United States v. Jacobson, 785 F. Supp. 563, 566 (E.D. Va. 1992). 17. Id. 18. Madeira, supra note 14; Garrett, supra note 15; Brian Maass, First Lawsuit Filed Against Fertility Dr. Paul Jones Accuses Him of Deception, CBS DENV. (Oct. 29, 2019), https://denver. cbslocal.com/2019/10/29/paul-jones-fertility-lawsuit-fertility-sperm/ [https://perma.cc/BKK8- ACDN]. 19. Madeira, supra note 14; Agence France-Presse in The Hague, Dutch Fertility Doctor ‘Secretly Fathered at Least 49 Children,’ GUARDIAN (Apr. 12, 2019), https://www.theguardian. com/world/2019/apr/12/dutch-fertility-doctor-secretly-fathered-at-least-49-children [https://perma.cc/DWW2-FTXG]. 20. See Garrett, supra note 15; Fox et al., supra note 14. 21. Wendy Kramer, Sperm Donation Needs Federal Regulation, TIME (Apr. 25, 2016), https://time.com/4299641/sperm-donation-needs-federal-regulation/ [https://perma.cc/KT3G- 7YCF]; but cf. Judith Daar, Federalizing Embryo Transfers: Taming the Wild West of Reproductive Medicine?, 23 COLUM. J. GENDER & L. 257 (2012) (arguing that regulation of ART exists); cf. Michael Ollove, Advocates and Experts Debate Need for More Regulation of Fertility Services, KAISER HEALTH NEWS (Mar. 19, 2015), https://khn.org/news/advocates-and-experts-debate-need- for-more-regulation-of-fertility-services/ [https://perma.cc/XG8F-Q42L] (“[P]rofessional self- regulation is extensive.”). 22. See Jacqueline Mroz, Their Children Were Conceived with Donated Sperm. It Was the Wrong Sperm., N.Y. TIMES (June 3, 2019), https://www.nytimes.com/2019/06/03/health/sperm- banks-fertility-artificial-insemination.html [https://perma.cc/7STB-PXQQ]. 23. See id. 24. Madeira, supra note 14. 25. Sam Tabachnik, Proposed Bill Would Finally Make It a Felony for Doctors to Inseminate Patients with Their Own Sperm, DENV. POST (Jan. 9, 2020), https://www.denverpost.com/2020/01/ 09/fertility-fraud-paul-jones-sperm-doctor-colorado/ [https://perma.cc/SQ3M-KV9H]. 26. Zhang, supra note 8. 126 INDIANA HEALTH LAW REVIEW [Vol. 18:123 claim that Indiana’s fertility fraud law, the Senate Enrolled Act 174, does not adequately protect the rights of intended parents because its criminal penalty is too lax. Additionally, this Note uniquely argues that Indiana should implement a version of the Uniform Parentage Act (“UPA”). Although other articles address the rights of intended parents or fertility fraud,27 the effect of Indiana’s new fertility fraud law on the rights of intended parents in the State has not yet been explored. A. Map of Review Section II of this Note discusses the history of fertility fraud and gamete donation, thereby describing relevant cases and definitions. It also addresses the lack of regulation in the United States and Indiana fertility industries as well as details Indiana’s change in this area of the law. Section III of this Note offers an analysis of Indiana’s new fertility fraud law, arguing that it is insufficient in protecting intended parents from fertility fraud due to the law’s minor criminal penalty. Moreover, it compares Indiana’s law to other state fertility fraud laws and asserts that Indiana’s law is inferior to them. Lastly, Section IV of this Note asserts that Indiana should adopt a version of the UPA to safeguard intended parents from negligence. II. AN OVERVIEW OF GAMETE DONATION, FERTILITY FRAUD, AND THE FERTILITY INDUSTRY IN THE UNITED STATES AND INDIANA To facilitate a better understanding of gamete donation and fertility fraud, this section provides background information for these practices. In detail, it describes the history of gamete donation, outlines necessary definitions and cases, and discusses relevant concerns. Additionally, this section explains the lack of regulation in the United States and Indiana fertility industries. This section finally specifies changes in Indiana law pertaining to gamete donation and fertility fraud. A. A Brief History of Gamete Donation In 1884, William Pancoast (“Pancoast”), a Philadelphia physician, performed the first successful artificial insemination.28 A couple visited Pancoast because they were unable to conceive, and Pancoast determined that this was due to the husband’s low sperm count.29 After two months of unsuccessful treatment, 27. See generally Jody Lynee Madeira, Uncommon Misconceptions: Holding Physicians Accountable for Insemination Fraud, 37 LAW & INEQ. 45 (2019) [hereinafter Uncommon Misconceptions]; see generally Jody Lynee Madeira, Understanding Illicit Insemination and Fertility Fraud, from Patient Experience to Legal Reform, 39.1 COLUM. J. GENDER & L. 110 (2020) [hereinafter Understanding Illicit Insemination]. 28. Elizabeth Yuko, The First Artificial Insemination Was an Ethical Nightmare, ATLANTIC (Jan. 8, 2016), https://www.theatlantic.com/health/archive/2016/01/first-artificial-insemination/ 423198/ [https://perma.cc/5EYY-CGWF]. 29. Id. 2021] DADDY DOCTOR 127 Pancoast took matters into his own hands.30 Specifically, he anesthetized his patient and inseminated her with donated sperm in front of six medical students.31 The sperm was donated by one of the medical students, who was nominated as the most attractive of the six.32 Pancoast did not disclose any of this information to the couple until a healthy baby boy was born nine months later.33 And, even then, Pancoast only confessed to the husband;34 “the two men decided that [the wife] would be better off not knowing the truth.”35 With the commercialization of sperm banks, sperm donation gained popularity roughly 100 years after Pancoast’s feat.36 The donors were mainly from universities,37 and they were “screened for genetic diseases” and “matched phenotypically to the recipient’s husband.”38 By 1977, artificial insemination with donor sperm produced about 3,567 children.39 This estimate at least octupled by 2010, “the most recent year for which good data is available.”40 That year, between “30,000 to 60,000 babies born in the United States were conceived through sperm donation.”41 B. Necessary Definitions and Information This subsection states important gamete donation definitions and information that uniquely relate to intended parents. For example, it describes the gamete donation process and the individuals that may participate in it. Additionally, this subsection explains fertility fraud and outlines potential motivations and significant concerns, such as consanguinity, behind the dishonest conduct. 1. What Is Gamete Donation? Out of 100 American couples, approximately twelve to thirteen of them have trouble conceiving.42 Consequently, many couples resort to gamete donation 30. Id. 31. Id. 32. Id. 33. Id. 34. Id. 35. Id. 36. See Wendy Kramer, A Brief History of Donor Conception, HUFFPOST (Dec. 6, 2017), h t tps:/ /www.huffpost .com/entry/a-brief-history-of-donor-conception_b_9814184 [https://perma.cc/L9BS-YMWR]. 37. Id. 38. Id. 39. Id. 40. Ashley Fetters, The Overlooked Emotions of Sperm Donation, ATLANTIC (July 9, 2018), h t tps:/ /www.theatlan tic.com/family/archive/2018/07/sperm-donations-emotional- consequences/564587/ [https://perma.cc/9NK4-BHA8]. 41. Id. 42. Female Infertility, U.S. DEP’T HEALTH & HUM. SERV., https://www.hhs.gov/opa/ 128 INDIANA HEALTH LAW REVIEW [Vol. 18:123 when a partner is unable to provide his own sperm or her own eggs.43 In short, gamete donation is the use of another individual’s eggs or sperm “in order to help an intended parent[] have a child.”44 Although gamete donation is a viable solution to infertility, it also raises ethical considerations.45 These considerations include anonymity, payment, recruitment and screening of donors, assessment and screening of recipients, safety, and the donor-conceived child.46 In general, gamete donation is a delicate topic because it tests the genetic filiation of the family unit, a vital component of society.47 2. What Is an Intended Parent, a Donor-Conceived Child, or a Gamete Donor? Intended or recipient parents are the terms used for the individuals who will raise a donor-conceived child.48 Gamete donation permits “one of the intended parents to keep [a] genetic link to the child.”49 Relatedly, a donor-conceived person is an individual who was conceived through sperm or egg donation. Furthermore, a gamete donor is an individual who donates his or her gametes, such as sperm or eggs, to help another person conceive.50 Accordingly, a sperm donor is a man who gives his sperm to a sperm bank or fertility clinic “so that it can be used to help women get pregnant.”51 Although payment fluctuates, “an active [sperm] donor who produces specimens twice a week might make $1,500 a month.”52 Similarly, an egg donor is a fertile woman who donates an egg to an infertile woman to help her have a child.53 Egg donation is part of assisted reproductive reproductive-health/fact-sheets/female-infertility/index.html [https://perma.cc/JXU2-2HZY] (last visited Oct. 25, 2019). 43. Gamete (Eggs and Sperm) and Embryo Donation, REPRODUCTIVEFACTS.ORG, https://www.reproductivefacts.org/news-and-publicat ions/patient-fact-sheets-and- booklets/documents/fact-sheets-and-info-booklets/gamete-eggs-and-sperm-and-embryo-donation/ [https://perma.cc/HWK5-7PZQ] (last updated 2014). 44. Id. 45. See European Soc’y of Human Reprod. & Embryology Task Force on Ethics & Law, III. Gamete and Embryo Donation, 17 HUM. REPROD. 1407 (2002). 46. Id. 47. Id. 48. Gamete (Eggs and Sperm) and Embryo Donation, supra note 43. 49. Id. 50. Id. 51. Sperm Donor, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/ sperm%20donor [https://perma.cc/E3GW-6Y2N] (last visited Oct. 25, 2019). 52. Tamar Lewin, 10 Things to Know About Being a Sperm Donor, N.Y. TIMES (Nov. 3, 2016), https://www.nytimes.com/2016/11/08/health/sperm-donor-facts.html [https://perma.cc/ 5NE3-SJ6X]. 53. Amanda Chatel, How Does Egg Donation Work? Experts and Egg Donors Share What 2021] DADDY DOCTOR 129 technology (“ART”), such as in vitro fertilization (“IVF”).54 An egg donor generally earns $8,000 for her donation.55 Though, the American Society of Reproductive Medicine (“ASRM”) suggests that compensation to egg donors exceeding $5,000 requires justification, and payments in excess of $10,000 are inappropriate.56 3. How Does Gamete Donation Work? Gamete donation functions either by inserting donor sperm into a woman’s reproductive tract or by combining donor eggs with sperm and transferring the resulting embryos to a woman’s uterus.57 Some people use donated gametes . . . because of medical issues, such as no or poor-quality eggs or sperm. [Others] use donation so they do not risk passing down genetic disorders to their children. Donation can [also] be used for social reasons such as same-sex couples or for single men and women.58 4. What Is Fertility Fraud? As previously described, fertility fraud is established when a donor-conceived person discovers that his biological father is his parents’ fertility doctor and not the sperm donor that his parents selected or consented to.59 “In [a] typical fertility fraud fact pattern, an adult learns that he or she has different paternal genetic relations and/or unexpected half-genetic siblings.”60 Subsequently, communications with these new relatives often suggest that something is awry, eventually revealing that the donor-conceived person is actually doctor- conceived.61 Some states may group the fertility fraud fact pattern with wrongful life They Want You to Know, BUSTLE (Aug. 5, 2019), https://www.bustle.com/p/how-does-egg- donation-work-experts-egg-donors-share-what-they-want-you-to-know-18232805 [https://perma.cc/5GEE-XR2A]. 54. Jayne Leonard, How Does the Egg Donation Process Work?, MED. NEWS TODAY (Mar. 22, 2019), https://www.medicalnewstoday.com/articles/314750.php [https://perma.cc/LS52-RWJP]; id. 55. Chatel, supra note 53. 56. Michelle J. Bayefsky et al., Compensation for Egg Donation: A Zero-Sum Game, 105 FERTILITY & STERILITY 1153, 1153 (2016) (discussing compensation to egg donors). 57. Reproductive Technologies: V. Gamete Donation, ENCYCLOPEDIA.COM, https://www. encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/reproductive- technologies-v-gamete-donation [https://perma.cc/EB2H-4FKH] (last visited Oct. 25, 2019). 58. Gamete (Eggs and Sperm) and Embryo Donation, supra note 43. 59. See Madeira, supra note 14. 60. Id. 61. See id. 130 INDIANA HEALTH LAW REVIEW [Vol. 18:123 cases.62 However, a wrongful life case is “a malpractice claim brought by or on behalf of a child born with a birth defect alleging that he or she would never have been born if not for the negligent advice or treatment provided to the parents by a physician or health-care provider.”63 Accordingly, fertility fraud cases are distinguishable from wrongful life cases because doctor-conceived persons are not arguing that they would have never been born.64 Instead, these individuals take issue with the process of their conception, not the outcome.65 Aside from what fertility fraud is, the question of why is also imperative to understanding the wrongful practice. Why would a fertility doctor engage in this type of misconduct? Although one may never truly know the response to this question,66 there are educated guesses and potential answers. For example, a physician may substitute his own sperm for that of a sperm donor because he deludingly believes that he is helping desperate couples.67 The physician may argue that the sperm donation that the patient selected and consented to failed to impregnate her.68 Also, a doctor may commit fertility fraud due to mental health issues, such as narcissistic personality disorder, sexual perversion, or because he did not properly coordinate sperm donors.69 Regardless of the twisted motivation, the practice is truly abhorrent. It shatters personal identity and has destroyed families.70 One final question surrounding fertility fraud is how it affects families or donor-conceived children. In addition to feeling violated,71 intended parents and doctor-conceived persons are concerned about inheritable mental or genetic conditions.72 Eve Wiley, daughter of Dr. Kim McMorries, turned to DTC genetic testing to learn more about her family’s medical history after her child was born with significant health problems.73 An additional concern is consanguinity, 62. Faculty Colloquia Series, supra note 14. 63. Wrongful Life, MERRIAM-WEBSTER, https://www.merriam-webster.com/legal/wrongful% 20life [https://perma.cc/FJ8M-FBQS] (last visited Feb. 1, 2020). 64. Faculty Colloquia Series, supra note 14. 65. Id. 66. See Understanding Illicit Insemination, supra note 27, at 138. 67. See Fox et al., supra note 14. 68. See Paige Skinner, Biological Dad Was Her Mother’s Fertility Doctor, DALL. OBSERVER (May 6, 2019), https://www.dallasobserver.com/arts/watch-eve-wiley-found-out-her-biological- dad-was-her-mothers-doctor-11658200 [https://perma.cc/E37K-L4P8]. 69. Faculty Colloquia Series, supra note 14. 70. Understanding Illicit Insemination, supra note 27, at 113; see Fox et al., supra note 14. 71. See Faculty Colloquia Series, supra note 14; Rudavsky, supra note 4. 72. Faculty Colloquia Series, supra note 14. 73. Chantalle Edmunds, Woman, 31, Discovers Her Biological Father Is Her Mother’s Fertility Doctor When She Uses an Ancestry Website and After 14 Years of Mistakenly Calling a Sperm Donor ‘Dad,’ DAILY MAIL (Apr. 30, 2019), https://www.dailymail.co.uk/news/article- 6978769/Woman-discovers-biological-father-mothers-fertility-doctor.html [https://perma.cc/3J8V- SPAU]. 2021] DADDY DOCTOR 131 especially in close-knit communities like the area that Cline practiced in.74 C. The Lack of Regulation in the United States Fertility Industry This subsection deconstructs the unregulated United States fertility industry. First, it briefly and generally describes the industry. Second, it outlines current industry regulations and procedures, if any. Last, it discusses problems associated with the industry as well as relevant cases that highlight these problems. 1. What Is the United States Fertility Industry? The fertility industry is booming.75 Today, there are over 100 sperm banks and approximately 480 fertility clinics in the United States.76 “Investors are pouring money into companies that promise to help people conceive,” especially since one in seven women will experience fertility issues.77 Though, investors are not only spending on treating infertility but also on preserving fertility.78 These investment areas represent two sizeable and growing areas of the fertility business. Currently, the United States fertility business earns about $25 billion.79 By 2026, this estimate is projected to rise to $41 billion.80 This nearly twofold increase is unsurprising given the growing demand for ART and IVF.81 Additionally, the industry continues to draw venture capitalists,82 who spent $624 million on fertility firms in 2018.83 While the fertility industry is expanding in the United States, the business is also expanding in other nations around the world.84 What distinguishes the United 74. Faculty Colloquia Series, supra note 14; Bonnie Steinbock, What’s Wrong with a Fertility Doctor Using His Own Sperm?, HASTINGS CTR. (Apr. 19, 2019), https://www.thehastingscenter. org/whats-wrong-with-a-fertility-doctor-using-his-own-sperm/ [https://perma.cc/TE7L-CDYM]. 75. The Fertility Business Is Booming, ECONOMIST (Aug. 8, 2019), https://www.economist. com/business/2019/08/08/the-fertility-business-is-booming [https://perma.cc/AW9H-34GF]. 76. Fertility Clinics & Infertility Services: $5.8 Billion United States Industry Analysis, 2018 – ResearchAndMarkets.com, AP NEWS (Nov. 30, 2018), https://apnews.com/BusinessWire/ de2625f77685482bb56020b3c4cc8d7d [https://perma.cc/LP7H-6BMR]. 77. The Fertility Business Is Booming, supra note 75; Alexis Christoforous, The Fertility Industry Is Booming, YAHOO! (Nov. 17, 2019), https://finance.yahoo.com/news/the-booming- business-of-infertility-165325772.html [https://perma.cc/V8FB-HQYP]. 78. The Fertility Business Is Booming, supra note 75. 79. Id. 80. Id. 81. Fertility Clinics & Infertility Services: $5.8 Billion United States Industry Analysis, 2018 – ResearchAndMarkets.com, supra note 76. 82. Christoforous, supra note 77. 83. The Fertility Business Is Booming, supra note 75. 84. Id. 132 INDIANA HEALTH LAW REVIEW [Vol. 18:123 States industry from the rest of the world is that it is not tightly regulated.85 This also applies to ART, which includes gamete donation.86 2. How Is the United States Fertility Industry Barely Regulated? In 1981, the first child conceived through ART in the United States was born.87 Consequently, the practice and use of ART grew during the 1980s. Almost forty years have passed since then, and still “no comprehensive policy governs ART in” this country.88 Instead, there is a “patchwork of . . . state and federal regulation that essentially leave the [United States] fertility industry unregulated.”89 Even though the American fertility business is hardly supervised,90 Congress attempted to take one step toward regulating ART with the Fertility Clinic Success Rate and Certification Act of 1992 (“FCSRCA”).91 Congress adopted this Act to address concerns about the quality and comparability of the information that infertility patients received about ART.92 Specifically, the FCSRCA directs all fertility clinics to report their success rates to the Centers for Disease Control and Prevention (“CDC”) in a standardized manner.93 However, the CDC does not have the authority to enforce ART clinics to do so.94 As a result, there are no legal consequences for clinics that do not report their success rates.95 Relatedly, “neither the fertility industry nor any other entity is required to collect data or report statistics on the numbers of human beings conceived using 85. Fertility Clinics & Infertility Services: $5.8 Billion United States Industry Analysis, 2018 – ResearchAndMarkets.com, supra note 76; see also Naomi Cahn, When Fertility Clinics Get It Wrong, FORBES (Aug. 8, 2019), https://www.forbes.com/sites/naomicahn/2019/08/08/when- fertility-clinics-get-it-wrong/#576971431f4a [https://perma.cc/9C57-L7KU] (“The political economy of assisted reproduction in the United States wards off meaningful oversight or enforceable rules that operate to deter misconduct in other countries.”). 86. Maya Sabatello, Regulating Gamete Donation in the U.S.: Ethical, Legal and Social Implications, 4 LAWS 352, 353 (2015). 87. The Fertility Clinic Success Rate and Certification Act, CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/art/nass/policy.html [https://perma.cc/FC8T-PQCQ] (last visited Oct. 25, 2019). 88. Alicia Ouellette et al., Lessons Across the Pond: Assisted Reproductive Technology in the United Kingdom and the United States, 31 AM. J.L. & MED. 419, 422 (2005). 89. Id. at 435. 90. But cf. Daar, supra note 21; cf. Ollove, supra note 21. 91. The Fertility Clinic Success Rate and Certification Act, supra note 87. 92. Id. 93. Id.; National ART Surveillance, CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/art/nass/index.html [https://perma.cc/C868-ARL4] (last updated May 7, 2019); see also 42 U.S.C. § 263a-1 (2019). 94. See Sonia Suter, Giving in to Baby Markets: Regulation Without Prohibition, 16 MICH. J. GENDER & L. 217, 252 (2009). 95. Ouellette et al., supra note 88, at 419. 2021] DADDY DOCTOR 133 donor sperm.”96 Therefore, even though fertility clinics are mandated to report success rate data to the CDC, this information is not narrowly shaped to identify the children successfully conceived using gamete donation. As a result, the United States has no reliable method of estimating how many donor-conceived children are born annually.97 However, experts believe that 30,000 to 60,000 American children born each year are conceived through sperm donation.98 Nevertheless, this “number is only an educated guess.”99 Apart from the FCSRCA, the United States fertility business is also regulated by the United States Food and Drug Administration (“FDA”). Particularly, the FDA requires all ART programs to register with the federal government.100 The agency also inspects these programs, including their documentation and written protocols.101 Additionally, the FDA regulates gametes, meaning sperm or eggs, as human reproductive tissue.102 However, similar to the CDC’s limited enforcement capabilities under the FCSRCA, the FDA’s authority is narrow as well.103 In particular, the FDA “is limited to preventing the transmission of communicable diseases such as AIDS and hepatitis.”104 While the CDC and FDA oversee aspects of the fertility industry, the business is still left largely unregulated. For example, federal law does not require infertility programs to be licensed or accredited.105 Plus, there is no federal law that tackles the misappropriation of donor gametes. For this reason, various states are beginning to take matters into their own hands.106 The closest resource the United States has to any type of true regulation or oversight of ART is the ASRM’s guidelines. These guidelines address certain 96. Wendy Kramer, 30-60K US Sperm and Egg Donor Births per Year?, HUFFPOST (Dec. 6, 2017), https://www.huffpost.com/entry/a-call-to-to-stop-using-t_b_8126736 [https://perma. cc/9Y54-K9AY]. 97. Id. 98. Ashley Fetters, Finding the Lost Generation of Sperm Donors, ATLANTIC (May 18, 2018), https://www.theatlantic.com/family/archive/2018/05/sperm-donation-anonymous/560588/ [https://perma.cc/NZ3C-5HUP]. 99. Karen Clark & Elizabeth Marquardt, The Sperm-Donor Kids Are Not Really All Right, SLATE (June 14, 2010), https://slate.com/human-interest/2010/06/new-study-shows-sperm-donor- kids-suffer.html [https://perma.cc/V2N5-MAV2]. 100. Practice Comm., Am. Soc’y for Reprod. Med. & Practice Comm., Soc’y for Assisted Reprod. Tech., Recommendations for Gamete and Embryo Donation: A Committee Opinion, 99 FERTILITY & STERILITY 47, 47 (2013). 101. Id. at 47-48. 102. What You Should Know – Reproductive Tissue Donation, U.S. FOOD & DRUG ADMIN., https://www.fda.gov/vaccines-blood-biologics/safety-availability-biologics/what-you-should-know- reproductive-tissue-donation [https://perma.cc/89Q8-KRGJ] (last updated Nov. 5, 2010). 103. Mroz, supra note 22. 104. Id.; see also 21 C.F.R. § 1271.75 (2019). 105. Ouellette et al., supra note 88, at 420. 106. See Tabachnik, supra note 25. 134 INDIANA HEALTH LAW REVIEW [Vol. 18:123 issues connected to fertility services.107 For instance, the guidelines for gamete donation discuss the selection, screening, and management of donors.108 The ASRM also provides guidelines for record keeping.109 Exclusively, it recommends that donor records be kept permanently, rather than for ten years as required by the FDA.110 Along with the ASRM, the American Association of Tissue Banks and the American Fertility Society attempt to remedy issues of insufficient federal regulation as well.111 3. How Does the Unregulated United States Fertility Industry Negatively Impact Intended Parents? In 2017, a couple (the “Zelts”) sued Xytex Corporation (“Xytex”), a sperm bank, for “allegedly misrepresenting a sperm donor’s mental health, educational level, and IQ to induce . . . couple[s] to purchase his sperm for artificial insemination.”112 Precisely, Xytex described the sperm donor “as a genius-level neuroscientist with bachelor’s and master’s degrees who was pursuing a Ph.D. in neuroscience engineering.”113 Instead, the sperm donor was a “schizophrenic felon” who had extensive psychiatric and criminal histories.114 Technology and the internet have certainly increased our access to information. The Zelts learned that Xytex made misrepresentations about their sperm donor after conducting an internet search on the donor and combing through public records.115 Moreover, DTC genetic testing is gaining popularity and beginning to reveal sperm bank negligence or cases of fertility fraud. Specifically, a rising number of intended parents are just discovering, years after the fact, that they received the wrong sperm donation.116 Sperm banks are loosely regulated.117 Therefore, sperm bank negligence, or donor mix-ups, are not surprising given the number of sperm banks that use 107. See Suter, supra note 94, at 252-53. 108. Practice Comm., Am. Soc’y for Reprod. Med. & Practice Comm., Soc’y for Assisted Reprod. Tech., supra note 100, at 48-53. 109. Id. at 53. 110. Id. 111. Tatiana Posada, Whose Sperm Is It Anyways in the Wild, Wild West of the Fertility Industry?, 34 GA. ST. U. L. REV. 847, 866 (2018). 112. Mary Anne Pazanowski, Couple Can’t Sue Xytex, Sperm Bank That Misrepresented Donor, BLOOMBERG L. (Feb. 4, 2019), https://news.bloomberglaw.com/health-law-and-business/ couple-cant-sue-xytex-sperm-bank-that-misrepresented-donor [https://perma.cc/E9AR-JMJ7]. 113. Tamar Lewin, Sperm Banks Accused of Losing Samples and Lying About Donors, N.Y. TIMES (July 21, 2016), https://www.nytimes.com/2016/07/22/us/sperm-banks-accused-of-losing- samples-and-lying-about-donors.html [https://perma.cc/4NRT-PP46]. 114. Id. 115. Zelt v. Xytex Corp., No. 1:17-CV-4851-TWT, 2018 WL 1014627, at 1 (N.D. Ga. 2018). 116. Mroz, supra note 22. 117. Id. 2021] DADDY DOCTOR 135 outdated methods of labeling specimens, such as pen and paper.118 For instance, an African-American donor’s specimen was mistakenly substituted for that of a precisely-selected Caucasian donor’s.119 The switch, unfortunately, occurred because “[s]perm vial numbers at the bank were written in pen and ink, and the facility’s records were not computerized.”120 “There are few legal remedies for parents who receive the wrong sperm . . . .”121 Courts have upheld that there is no injury if the donor-conceived child is healthy because whether one donor is better than another is essentially unknown.122 Also, in the Zelts’ case, the Eleventh Circuit left the couple with little recourse by finding that the applicable state law did not recognize the birth of a child with undesirable inherited characteristics as a compensable legal injury.123 The number of donor-conceived children that are inheriting genetic diseases, learn that their donor was untruthful about his health history, discover that the sperm bank failed to inform them of reported illness, or uncover that they were doctor-conceived is growing.124 Also, intended parents are accusing sperm banks of careless recordkeeping, using misleading descriptions to market sperm, or misappropriating sperm donated or banked for personal use.125 These discoveries and accusations represent significant problems with the United States fertility industry’s shortage of regulation. D. The Lack of Regulation in the Indiana Fertility Industry and Indiana’s Change in This Area of the Law This subsection reviews the Indiana fertility business. First, it explains relevant regulations and laws in Indiana. Second, it briefly summarizes Indiana’s failed Gamete Donation Act. Last, it describes a change in this area of Indiana law, such being the Senate Enrolled Act 174. This Act is also commonly referred to as Indiana’s fertility fraud law. 1. How Is the Indiana Fertility Industry Regulated? “There are two basic levels in the [United States] legal system: federal law and state law.”126 Federal laws and regulations apply to all 50 states, while state laws 118. Id. 119. Cramblett v. Midwest Sperm Bank, LLC, 230 F. Supp. 3d 865, 867 (N.D. Ill. 2017). 120. Mroz, supra note 22. 121. Id. 122. Harnicher v. Univ. of Utah Med. Ctr., 962 P.2d 67, 72 (Utah 1998) (“[I]t is impossible to know whether the children of [the correct donor] would have been superior in any way to the [healthy] triplets . . . .”). 123. Zelt v. Xytex Corp., 766 F. App’x 735, 739, 741 (11th Cir. 2019). 124. Kramer, supra note 21. 125. Lewin, supra note 113. 126. Lesley Daunt, State vs. Federal Law: Who Really Holds the Trump Card?, HUFFPOST (Mar. 20, 2014), https://www.huffpost.com/entry/state-vs-federal-law-who-_b_4676579 [https:// 136 INDIANA HEALTH LAW REVIEW [Vol. 18:123 and regulations only apply to the specific state in which they were enacted.127 Hence, in terms of ART, Indiana is subject to the FCSRCA, FDA, and its own laws or regulations. Like the United States fertility industry, “[t]he regulation of private fertility clinics and gamete banks by individual states is also often lacking.”128 Still, compared to the federal government, Indiana seems to have taken steps toward better regulating its particular fertility business. For instance, Indiana obligates physicians to collect the following information from sperm donors: name, address, date of birth, and social security number.129 In line with the FDA’s regulations, Indiana tests sperm donations for communicable and sexually transmitted diseases.130 However, a physician may order more tests for a donor “to rule out the presence of [other] infectious disease[s].”131 If a required medical or laboratory test indicates the presence of certain communicable or dangerous illnesses, physicians must report the donor to the State Department and “attempt to notify [the] donor or recipient.”132 These diseases include syphilis, hepatitis, and HIV.133 Similarly, hospitals, birthing centers, and abortion clinics must relate cases of artificial insemination with the incorrect gamete to the State Department because they are reportable events.134 Further, physicians may only use sperm donations if particular conditions are met.135 First, the gamete donation must be “frozen and quarantined for at least [180] days.”136 Second, the donor must be retested for HIV after 180 days.137 Indiana penalizes health care providers that do not comply with the required regulations.138 2. Indiana’s Failed Gamete Donation Act In 2019, Indiana attempted to better regulate gamete donation with House Bill 1369.139 A portion of the bill, which exclusively addressed sperm and egg donation, was referred to as the Indiana Gamete Donation Act.140 The Act perma.cc/VR34-PYJW]. 127. Id. 128. Sabatello, supra note 86; see also Dov Fox, Reproductive Negligence, 117 COLUM. L. REV. 149, 162 (2017). 129. IND. CODE § 16-41-14-12 (2019). 130. See IND. CODE § 16-41-14-6 (2019); see 410 IND. ADMIN. CODE § 25-2-2 (2019). 131. 410 IND. ADMIN. CODE § 25-2-4 (2019). 132. IND. CODE § 16-41-14-9 (2019); see generally IND. CODE § 16-41-2-1 (2019). 133. IND. CODE § 16-41-14-5 (2019). 134. 410 IND. ADMIN. CODE §§ 15-1.4-2.2, 26-6-2, 27-6-2 (2019). 135. IND. CODE § 16-41-14-7 (2019). 136. Id. 137. Id. 138. IND. CODE §§ 16-41-2-8, -14-19 (2019). 139. H.B. 1369, 121st Gen. Assemb., 1st Reg. Sess. (Ind. 2019). 140. Id. 2021] DADDY DOCTOR 137 “amend[ed] provisions regarding testing of donated human sperm and eggs,” and set forth requirements for gamete donation agreements.141 It was a proposed new chapter for the Indiana Code.142 Consistent with the ASRM’s guidelines,143 the Gamete Donation Act required gamete donors to undergo mental health and medical evaluations by specialists.144 Likewise, it obligated intended parents to also complete a mental health evaluation.145 Plus, the Act required fertility clinics to comply with FDA guidelines,146 thereby attempting to cure the FDA’s inability to adequately regulate the fertility industry.147 Nonetheless, the Indiana Gamete Donation Act was unfortunately not adopted.148 3. Indiana’s Change in This Area of the Law Although the Indiana Legislature failed to adopt the Gamete Donation Act, it passed the Senate Enrolled Act 174 in 2019.149 Governor Holcomb signed the Act into law after Cline’s wrongdoing.150 The Act “allows for civil action in response to fertility fraud and increases the penalty for fertility deception to a Level 6 felony.”151 A Level 6 felony is the “lowest [felony] level under Indiana law.”152 Regardless, the Act is “the first such law in the country.”153 Under the Senate Enrolled Act 174, a woman who conceives after infertility treatment “may bring an action against a health care provider who knowingly or intentionally treated the woman for infertility by using the health care provider’s own [sperm] or [egg], without the [woman]’s informed written consent.”154 The woman’s surviving spouse or the resulting child may also initiate this action.155 141. Id. 142. Id. 143. Practice Comm., Am. Soc’y for Reprod. Med. & Practice Comm., Soc’y for Assisted Reprod. Tech., supra note 100, at 48-53. 144. H.B. 1369. 145. Id. 146. See id. 147. Mroz, supra note 22; see also 21 C.F.R. § 1271.75 (2019). 148. H.B. 1369. 149. Kara Kenney, Governor Signs Fertility Fraud and Deception Bill into Law, RTV6 INDIANAPOLIS (May 6, 2019), https://www.theindychannel.com/news/politics/governor-signs- fertility-fraud-and-deception-bill-into-law [https://perma.cc/2UGV-HDZM]. 150. Id. 151. Casey Smith, What You Should Know About These Indiana Laws Going into Effect July 1, INDY STAR (July 1, 2019), https://www.indystar.com/story/news/politics/2019/07/01/new- indiana-laws-july-1-2019-firearms-abortion-scooters-more/1459500001/ [https://perma.cc/L5Q7- FWNG]. 152. Madeira, supra note 14. 153. Zhang, supra note 8. 154. IND. CODE § 34-24-5-2 (2019). 155. Id. 138 INDIANA HEALTH LAW REVIEW [Vol. 18:123 Next, the Act provides that a prevailing plaintiff is entitled to compensatory and punitive damages as well as liquidated damages of $10,000.156 Compensatory, or actual, damages are of a sufficient amount to indemnify the harm, loss, or injury suffered.157 On the other hand, punitive damages are awarded in addition to compensatory damages when a defendant acted with recklessness, malice, or deceit.158 Further, punitive damages penalize the wrongdoer. Lastly, liquidated damages are a type of compensatory damages,159 and they set forth damages for breach of contract ahead of time.160 Aside from civil causes of action for fertility fraud, the Act creates a criminal cause of action.161 However, it originally advanced without a criminal penalty because a senate committee believed that there were protections already in place for intended parents under Indiana law.162 Nonetheless, the Act was “amended to reinsert the criminal cause of action” because Cline’s victims asserted that the criminal penalty was imperative in keeping doctors accountable.163 Also, Marion County prosecutors were limited in making a criminal case against Cline under state law before the Act was adopted.164 III. INDIANA SHOULD IMPLEMENT A MORE STRINGENT CRIMINAL PENALTY FOR FERTILITY FRAUD This section analyzes the Senate Enrolled Act 174, also commonly known as Indiana’s fertility fraud law. First, it compares Indiana’s law with other state fertility fraud laws, thereby illustrating how the Act’s criminal penalty is too lax in protecting the rights of intended parents. Second, it specifically discusses the interests of intended parents. Last, it examines gaps in Indiana law, analyzes the Senate Enrolled Act 174’s effect on Indiana intended parents, and asserts that Indiana should implement a more stringent criminal penalty for fertility fraud. A. The Senate Enrolled Act 174 Compared to Different State Fertility Fraud Laws Today, only three states have laws that exclusively tackle fertility fraud: 156. IND. CODE § 34-24-5-4 (2019). 157. Actual Damages, CORNELL L. SCH., https://www.law.cornell.edu/wex/actual_damages [https://perma.cc/Y2L9-WFRR] (last visited Feb. 1, 2020). 158. Punitive Damages, CORNELL L. SCH., https://www.law.cornell.edu/wex/punitive_ damages [https://perma.cc/BE3E-72KS] (last visited Feb. 1, 2020). 159. Liquidated Damages, CORNELL L. SCH., https://www.law.cornell.edu/wex/liquidated_ damages [https://perma.cc/T2NK-XMV8] (last visited Feb. 1, 2020). 160. Id. 161. Madeira, supra note 14. 162. Kelly Reinke, Lawmakers Remove Criminal Penalty from Fertility Fraud Bill, FOX 59 (Jan. 23, 2019), https://fox59.com/2019/01/23/lawmakers-remove-criminal-penalty-from-fertility- fraud-bill/ [https://perma.cc/E5QW-DSYE]. 163. Madeira, supra note 14. 164. Id. 2021] DADDY DOCTOR 139 California, Indiana, and Texas.165 However, Colorado has proposed a bill to address the wrongful practice, “while Florida and Delaware are working on legislation this session.”166 This subsection outlines the fertility fraud laws in California and Texas. Also, it compares the Senate Enrolled Act 174 to them. 1. California After more than ten years of trying to conceive, a California couple visited a fertility doctor at the University of California at Irvine (“UCI”).167 The doctor created twenty-one embryos, using the couples’ gametes, and froze all of them for future use.168 In 1995, the couple learned that three of their embryos were implanted in another woman without their consent.169 This woman gave birth to twins, the couple’s biological children.170 During the 1990s, “[s]tealing human tissue was not a crime.”171 Health care providers at UCI, in approximately thirty cases, allegedly took women’s eggs or patient embryos without their consent and gave them to other women.172 No less than fifteen births followed from this wrongful conduct, and UCI whistleblowers reported this egg-theft scandal to officials.173 Following the UCI scandal, the California Legislature adopted section 367g of the California Penal Code.174 Such “criminalize[s] the fraudulent use or implantation of gametes or embryos in ART for any purposes other than those chosen by the gamete or embryo provider[].”175 Specifically, section 367g of the California Penal Code makes it unlawful for health care providers to knowingly use gametes or embryos for a different purpose than that specified by the gamete or embryo provider through written consent.176 It also makes it unlawful for health care providers to knowingly “implant these materials into someone who is not the person providing these materials without the provider’s signed written consent.”177 However, written consent is not mandatory for sperm donors that 165. Tabachnik, supra note 25. 166. Id. 167. Cynthia Sanz, A Fertility Nightmare, PEOPLE (July 24, 1995), https://people.com/archive/ a-fertility-nightmare-vol-44-no-4/ [https://perma.cc/2SM4-D8E8]. 168. Id. 169. Id. 170. Id. 171. Register Staff Writer & Teri Sforza, Should UC Go After Fertility Fraud Doctor’s Assets?, ORANGE COUNTY REG. (Jan. 25, 2011), https://www.ocregister.com/2011/01/25/should-uc- go-after-fertility-fraud-doctors-assets/ [https://perma.cc/X46K-B9ET]. 172. Sanz, supra note 167. 173. Register Staff Writer & Sforza, supra note 171. 174. Madeira, supra note 14. 175. Uncommon Misconceptions, supra note 27, at 49. 176. CAL. PENAL CODE § 367g (2019). 177. Uncommon Misconceptions, supra note 27, at 65 (citations omitted); see also id. 140 INDIANA HEALTH LAW REVIEW [Vol. 18:123 donate to a licensed sperm bank.178 An individual who violates section 367g of the California Penal Code is punished by imprisonment for three to five years, fined up to $50,000, or both.179 Until 2019, the year that the Senate Enrolled Act 174 was passed in Indiana, California was the only state in the nation that expressly outlawed fertility fraud.180 Though, these two pieces of legislation are dissimilar in a couple of ways. First, the Indiana law distinctively addresses the use of a health care provider’s own gametes in ART.181 Thus, the Senate Enrolled Act 174 seems more focused on the rights of intended parents,182 whereas section 367g of the California Penal Code focuses more so on the rights of gamete or embryo providers.183 Second, the Indiana law imposes a lesser criminal penalty, a Level 6 felony, on violators of it. Particularly, under Indiana criminal law, an individual who commits a Level 6 felony is “imprisoned for a fixed term of between six months . . . and two and one-half years.”184 Also, the person may not be fined in excess of $10,000.185 This criminal penalty is much less than that imposed by section 367g of the California Penal Code.186 2. Texas In 2003, Eve Wiley (“Wiley”), a Texas woman, learned that she was donor- conceived.187 Although confused at first, she was also excited to learn more about her biological father, Donor #106.188 Soon thereafter, she met Donor #106.189 Though, in a turn of events, Wiley later discovered that her mother’s fertility doctor impregnated “her mother with his own sperm, making him – not Donor #106 – her biological father.”190 After lobbying to change Texas law, Wiley successfully pushed the Texas 178. PENAL § 367g. 179. Id. 180. Leila Ettachfini, Doctors Can Legally Inseminate Patients with Their Own Sperm in Most States, VICE (Apr. 22, 2019), https://www.vice.com/en_us/article/pajdn7/fertility-fraud- insemination-laws-donald-cline [https://perma.cc/M66T-4VPJ]. 181. IND. CODE § 34-24-5-2 (2019). 182. See id. 183. See PENAL §367g. 184. IND. CODE § 35-50-2-7 (2019). 185. Id. 186. See PENAL §367g. 187. Kyra Phillips et al., Texas Woman Seeks to Change Law After DNA Test Reveals Shocking Truth About Her Genetic Family Tree, ABC NEWS (May 3, 2019), https://abcnews.go. com /U S/ texas -wom an -seeks-change-law-dna-tes t -r evea ls / s to ry? id= 6 2 8 0 9 1 2 7 [https://perma.cc/9MF2-BRU5]. 188. Id. 189. Id. 190. Id. 2021] DADDY DOCTOR 141 Legislature to pass a fertility fraud law.191 In 2019, Texas passed Senate Bill No. 1259,192 which makes “fertility fraud a new category of sexual assault” in the State.193 The law expressly makes it a sexual assault for a health care provider, who is performing ART on a patient, to “use[] human reproductive material from a donor knowing that the [patient] has not expressly consented to the use of material from that donor.”194 “Physicians violating this provision can be sentenced to between six months and two years in prison and be fined up to $20,000.”195 Additionally, a physician found guilty under the Texas “law must register as a sexual offender.”196 While the Texas and Indiana fertility fraud laws are alike in that violators may be imprisoned for similar amounts of time,197 the Senate Bill No. 1259 is unique in that it classifies fertility fraud as a new category of sexual assault.198 Hence, the Texas law seems to better get at what fertility fraud really is.199 Not only has a physician betrayed his patient’s trust but also the doctor-patient fiduciary relationship.200 Further, the physician has literally inserted a “part of himself into the [patient]’s bodily cavity” without her consent, thereby violating her autonomy.201 B. Fertility Fraud and the Interests of Intended Parents While intended parents have several different interests, there are three that are most relevant to this Note: patient autonomy, being touched by a doctor with appropriate motives, and receiving properly screened gametes. This subsection describes each of these interests in order. 1. Patient Autonomy Patient autonomy is “[t]he right of patients to make decisions about their 191. Edmunds, supra note 73. 192. Robert T. Garrett, Dallas Woman’s Push to Make Fertility Fraud a Crime Results in New Law on the Books in Texas, DALL. MORNING NEWS (June 5, 2019), https://www.dallasnews.com/ news/politics/2019/06/05/dallas-woman-s-push-to-make-fertility-fraud-a-crime-results-in-new-law- on-the-books-in-texas/ [https://perma.cc/YJ2B-6Y5H] [hereinafter Dallas Woman’s Push]. 193. Garrett, supra note 15. 194. S.B. 1259, 86th Leg. (Tex. 2019); Dallas Woman’s Push, supra note 192. 195. Madeira, supra note 14. 196. Jeffrey Martin, Fertility Doctors Using Their Own Sperm for Fertilization Leads to ‘Fertility Fraud’ Legislation in 3 States, NEWSWEEK (Nov. 5, 2019), https://www.newsweek. com/fertility-doctors-using-their-own-sperm-fertilization-leads-fertility-fraud-legislation-3-1469975 [https://perma.cc/J3HR-HU39]. 197. See S.B. 1259; see H.B. 1369, 121st Gen. Assemb., 1st Reg. Sess. (Ind. 2019). 198. S.B. 1259. 199. Ettachfini, supra note 180. 200. Id. 201. Id. 142 INDIANA HEALTH LAW REVIEW [Vol. 18:123 medical care without their health care provider trying to influence the decision.”202 Patient autonomy does not permit a physician to make a health care decision for the patient.203 Though, the physician may educate the patient on his or her condition.204 According to the Code for Professional Ethics for the American College of Obstetricians and Gynecologists, respect for patient autonomy is fundamental.205 In Kaplan v. Mamelak, a patient sued his surgeon for medical malpractice and battery, claiming that he suffered pain after the surgeon twice operated on the patient’s wrong herniated disks.206 The California court reasoned that “a battery occurs if [a] physician performs a ‘substantially different treatment’ from that covered by the patient’s expressed consent.”207 Thus, a doctor who operates on a patient without the patient’s informed or express consent commits a battery. Similarly, under Indiana law, “[t]he failure to obtain informed consent rises to the level of battery only when [a] physician completely fails to obtain” it.208 An obstetrician-gynecologist, or fertility doctor, is obligated to obtain informed consent from each patient.209 Informed consent transpires when communication between a doctor and patient “results in the patient’s authorization . . . to undergo a specific medical intervention.”210 Consent to inseminate with a specific specimen “does not constitute consent to insemination with any type of sperm whatsoever.”211 Doctors who impregnated their patients with their own sperm “never obtained consent to do so.”212 Instead, these doctors agreed to inseminate the patient with a sperm donation or a husband’s sample.213 Thus, intended parents in fertility fraud cases have a right to autonomy. 202. William C. Shiel, Medical Definition of Patient Autonomy, MEDICINENET, https://www. medicinenet.com/script/main/art.asp?articlekey=13551 [https://perma.cc/6GF7-959V] (last visited Feb. 1, 2020). 203. Id. 204. Id. 205. Code of Professional Ethics of the American College of Obstetricians and Gynecologists, AM. C. OBSTETRICIANS & GYNECOLOGISTS, https://webcache.googleusercontent.com/search?q= cache:WSCyVNq_au0J:https://m.acog.org/About-ACOG/ACOG-Departments/Committees-and- Councils/Volunteer-Agreement/Code-of-Professional-Ethics-of-the-American-College-of- O bs t e t r ic ian s -and-Gynecologists+&cd=1&hl=en&ct=clnk&gl=us&client=safari [https://perma.cc/88SW-ATM5] (last visited Mar. 26, 2020). 206. Kaplan v. Mamelak, 162 Cal. App.4th 637, 637 (Cal. Ct. App. 2008). 207. Id. at 646. 208. Van Sice v. Sentany, 595 N.E.2d 264, 267 n.6 (Ind. Ct. App. 1992). 209. Code of Professional Ethics of the American College of Obstetricians and Gynecologists, supra note 205. 210. Informed Consent, AMA, https://www.ama-assn.org/delivering-care/ethics/informed- consent [https://perma.cc/E9JX-LY7U] (last visited Feb. 1, 2020). 211. Understanding Illicit Insemination, supra note 27, at 166 (emphasis added). 212. Id. 213. Id. 2021] DADDY DOCTOR 143 2. Touching and Appropriate Motives Within the last year, at least six gynecologists were accused of sexual assault.214 Although the majority of physicians cannot fathom engaging in this type of behavior, “[i]t is no longer sufficient to rely solely on physicians’ professed good intentions to ensure that patients are adequately protected.”215 Patients have a right to be treated for legitimate medical reasons as well as an interest in being touched for clinical reasons and within the course of professional duties.216 Fertility doctors, or obstetrician-gynecologists, that engage in sexual misconduct abuse their professional power and violate patient trust.217 Relatedly, “[a] physician who obtains sexual gratification from inseminating a patient with an appropriately anonymous donor sperm sample is engaging in an illicit touching.”218 The physician, simply, is using his patient for an inappropriate purpose.219 Moreover, “[w]hen a physician procures his own sperm sample though masturbation and moments later uses that sample to inseminate[] his female patient, the violation is compounded: the patient is not only being penetrated for an unconsented-to purpose” but also “unwittingly help[s] the physician sow his seed as widely as possible.”220 3. Properly Screened Gametes As previously discussed, the FDA “requires basic screening for infectious diseases and [specific] risk factors before a man can become a sperm donor.”221 Additionally, certain states may require further screening.222 Today, the FDA particularly requires sperm donors to be tested for communicable diseases.223 214. Christina Caron, Identifying Red Flags at the Ob-Gyn, N.Y. TIMES (Jan. 22, 2020), https://parenting.nytimes.com/pregnancy/ob-gyn-sexual-assault?smtyp=cur&smid=tw-nytimes [https://perma.cc/86HE-3876]. 215. Id. 216. See Amy Blair & Katherine Wasson, Professionalism and Appropriate Expression of Empathy When Breaking Bad News, 17 AMA J. ETHICS 111, 113 (2015). 217. Code of Professional Ethics of the American College of Obstetricians and Gynecologists, supra note 205. 218. Understanding Illicit Insemination, supra note 27, at 177; see also Comm. on Ethics, Sexual Misconduct, AM. C. OBSTETRICIANS & GYNECOLOGISTS (Jan. 2020), https://www.acog. org/clinical/clinical-guidance/committee-opinion/articles/2020/01/sexual-misconduct [https://perma.cc/EM2L-Z4XZ] (“The patient-physician relationship is damaged when there is either confusion regarding professional roles and behavior or clear lack of integrity that allows sexual exploitation and harm.”). 219. See Understanding Illicit Insemination, supra note 27, at 177. 220. Id. 221. Sperm Donation, MAYO CLINIC, https://www.mayoclinic.org/tests-procedures/sperm- donation/about/pac-20395032 [https://perma.cc/29R8-JUU2] (last visited Feb. 1, 2020). 222. Id. 223. What You Should Know – Reproductive Tissue Donation, supra note 102. 144 INDIANA HEALTH LAW REVIEW [Vol. 18:123 These diseases include HIV, hepatitis, and other sexually transmitted infections.224 Sperm donors are not only tested for infectious or communicable diseases before providing their sample but also six months after the sample is received.225 To protect intended parents, the ASRM also recommends that sperm donors undergo a physical exam, semen testing, genetic testing, and a psychological evaluation.226 In addition, a sperm donor should be between eighteen and thirty- nine years old, and he should have his family medical history, personal history, and sexual history evaluated.227 Although some of these regulations or recommendations were not yet in place when certain patients were illicitly inseminated, these patients still had an interest in verifying that their sperm donors were disease-free.228 Moreover, these individuals “had interests in expecting that their physicians would use sperm donor samples that had been appropriately screened in at least [three additional] senses:” (1) to confirm the sample’s origin, (2) to confirm that the donor phenotypically matched the husband, and (3) to prevent consanguinity.229 C. The Senate Enrolled Act 174’s Effect on Indiana Intended Parents This subsection specifically analyzes the impact of Indiana’s fertility fraud law on intended parents and asserts that the Indiana Legislature should adopt a more stringent criminal penalty for fertility fraud. First, it outlines gaps in Indiana criminal law. Then, it describes how the Senate Enrolled Act 174 potentially fills these gaps as well as the Act’s advantages, disadvantages, and potential solutions. 1. Relevant Gaps in Indiana Criminal Law Fertility fraud cases often “fall within gaps in civil and criminal law.”230 For example, in Indiana, the State’s rape statute does not correspond well with Cline’s conduct.231 Under Indiana law, rape occurs when “a person knowingly or intentionally has sexual intercourse with another person or knowingly or intentionally causes another person to perform or submit to other sexual conduct.”232 Additionally, the other person must either be (1) “compelled by force or imminent threat of force,” (2) “unaware that the sexual intercourse or other sexual conduct” is happening, or (3) mentally disabled or deficient to consent to 224. Id. 225. Sperm Donation, supra note 221. 226. Id. 227. Id. 228. Understanding Illicit Insemination, supra note 27, at 169. 229. Id. 230. Id. at 113. 231. Uncommon Misconceptions, supra note 27, at 57. 232. IND. CODE § 35-42-4-1 (2019). 2021] DADDY DOCTOR 145 sexual intercourse or sexual conduct.233 In terms of Cline’s misconduct, only the second provision seems applicable because Cline’s patients were unaware that they were being inseminated with his sperm.234 However, Marion County prosecutors did not pursue Cline under Indiana’s rape statute because they “believed that it would be too difficult to prove that Cline’s actions were sexually motivated without an admission from him saying so.”235 Therefore, Cline’s “acts are not traditionally prosecutable as rape or sexual assault” because his victims ‘“consented’ to the inseminations.”236 In addition, Indiana’s sexual battery statute is also inconsistent with Cline’s conduct. Sexual battery in Indiana is a Level 6 felony for the context of this Note.237 The statute states that an individual commits sexual battery if he or she touches another individual who is either (1) “compelled to submit to the touching by force or the imminent threat of force” or (2) unable to consent to the touching due to mental disability or deficiency.238 Also, a person commits sexual battery if he or she “touches another person’s genitals, pubic area, buttocks, or female breast when that person is unaware that the touching is occurring.”239 For each of these provisions, the wrongdoer must engage in the touching with an “intent to arouse or satisfy [his or her] own sexual desires or the sexual desires of another person.”240 None of the aforementioned sexual battery provisions seem to apply to Cline’s conduct. Specifically, “Cline did not use or threaten force against his patients, did not give them drugs of which they were unaware, and had consent to touch their genital areas.”241 Moreover, Indiana’s criminal battery and malicious mischief statutes “do not map well onto Cline’s conduct” either.242 For instance, an individual commits criminal battery, a Class B misdemeanor, if he “knowingly or intentionally: (1) touches another person in a rude, insolent, or angry manner; or (2) in a rude, insolent, or angry manner places any bodily fluid or waste on another person.”243 Prosecution of Cline under this statute would likely fail because “there is little to no evidence that Cline conducted the inseminations in a rude, insolent, or angry manner.”244 Also, prosecution may be problematic because Cline’s patients consented to insemination with donor sperm.245 233. Id. (emphasis added). 234. Ettachfini, supra note 180. 235. Id. 236. Understanding Illicit Insemination, supra note 27, at 113. 237. See IND. CODE § 35-42-4-8 (2019). 238. Id. 239. Id. 240. Id. 241. Understanding Illicit Insemination, supra note 27, at 190. 242. Uncommon Misconceptions, supra note 27, at 57. 243. IND. CODE § 35-42-2-1 (2019). 244. Uncommon Misconceptions, supra note 27, at 57. 245. Id. at 58. 146 INDIANA HEALTH LAW REVIEW [Vol. 18:123 Finally, Indiana’s malicious mischief statute states that an individual commits a Class B misdemeanor if he recklessly, knowingly, or intentionally places human bodily fluid or fecal waste “in a location with the intent that another person will involuntarily touch” it.246 Moreover, if the person “recklessly failed to know that the bodily fluid . . . was infected with” hepatitis, HIV, or tuberculosis, then he may be convicted of either a Level 6 felony, Level 5 felony, or Level 4 felony depending on the circumstances.247 With respect to Cline’s case, the Indiana Legislature probably did not intend to “apply malicious mischief to the placement of bodily fluid in the context of a medical procedure.”248 Also, reports do not indicate that Cline’s victims were infected with any infectious or communicable diseases. 2. The Senate Enrolled Act 174: Advantages and Disadvantages This subsubsection summarizes the Senate Enrolled Act 174’s advantages and disadvantages. It initially describes how the Act fills gaps in Indiana criminal law, thereby better protecting the interests of intended parents. Then, it explains the Act’s deficiencies and asserts that the Indiana Legislature should adopt a more stringent criminal penalty for fertility fraud. a. Advantages As previously mentioned, the Senate Enrolled Act 174 is “the first such law in the country.”249 To reiterate, it allows a woman who conceives after infertility treatment to “bring an action against a health care provider who knowingly or intentionally treated the woman by using the health care provider’s own [sperm] or [egg], without the [woman]’s informed written consent.”250 The Act fills gaps in Indiana criminal law by better protecting patient autonomy, which is an interest of intended parents. In detail, the Act enforces that consent to inseminate with one sperm sample does not constitute consent to inseminate with any sperm sample. Thus, with respect to consent, the Act remedies gaps left by Indiana’s rape, sexual battery, and criminal battery statutes. Additionally, the Act’s criminal penalty is either greater than or equal to the penalties for sexual battery, criminal battery, or malicious mischief.251 For example, a person who commits criminal battery or malicious mischief may not be imprisoned for more than 180 days,252 which is significantly less than the Act’s 246. IND. CODE § 35-45-16-2 (2019). 247. Id. 248. Uncommon Misconceptions, supra note 27, at 57. 249. Zhang, supra note 8. 250. IND. CODE § 34-24-5-2 (2019). 251. Compare H.B. 1369, 121st Gen. Assemb., 1st Reg. Sess. (Ind. 2019), with IND. CODE § 35-42-4-8 (2019), and IND. CODE § 35-42-2-1 (2019), and § 35-45-16-2. 252. See IND. CODE §§ 35-42-2-1, -45-16-2, -50-3-3 (2019) (showing that criminal battery and malicious mischief are both Class B misdemeanors). 2021] DADDY DOCTOR 147 possible imprisonment term of six months to two and one-half years.253 Thus, in comparison to the various Indiana criminal statutes that Cline could not be prosecuted under, the Act imposes a serious criminal penalty and better protects the interests of intended parents by treating illicit insemination as a serious crime. b. Disadvantages and potential solutions Although the Senate Enrolled Act 174 is a step in the right direction, there is still room for improvement. Particularly, the Act does not suitably protect intended parents from illicit touching by a physician or from receiving improperly screened gametes. First, the Act is insufficient because it does not completely fill the gap left by Indiana’s rape statute. To illustrate, there are two relevant types of touching for the purposes of this Note: clinical and sexual. As previously described, a clinical touch occurs when a physician touches a patient for clinical reasons and within the course of professional duties.254 Alternatively, a sexual act includes genital penetration with an object, along with an intent to “gratify the sexual desire of any person.”255 Although Cline or other fertility fraud perpetrators could argue that their illicit inseminations were clinical touches or acts, how are these inseminations “still clinical when the physician . . . masturbates . . . in a nearby room, catches his sample, walks to the [patient] examination room,” and then “inserts [the] sample into [the patient’s] vagina via a syringe and catheter?”256 Further, how is illicit insemination not a sexual act when Cline was likely under “orgasm’s physiological effects when he inseminated his patients”?257 The Senate Enrolled Act 174 does not protect intended parents from illicit touching by a physician.258 To cure this, the Indiana Legislature, similar to the Texas Legislature, should classify illicit insemination as a sex crime because it involves a sexual act. Liz White, one of Cline’s victims, asserts that “the [fifteen] times . . . Cline inseminated her . . . constituted nothing less than sexual assault.”259 Moreover, classifying fertility fraud as a sex crime more accurately portrays what the wrongful practice is: a betrayal of the doctor-patient fiduciary relationship.260 Relatedly, Indiana physicians who are convicted of sex crimes may have their 253. See Smith, supra 151; see IND. CODE §§ 35-43-5-3, -50-2-7 (2019). 254. Blair & Wasson, supra note 216. 255. What Is a Sexual Act, Sexual Contact, or Sexual Activity?, ROCKLAND COMMUNITY C., https://www.sunyrockland.edu/about/title-ix/sexual-assault-violence-harassment-faq/what-is-a- sexual-act-sexual-contact-or-sexual-activity [https://perma.cc/WZK3-92TC] (last visited Feb. 1, 2020). 256. Uncommon Misconceptions, supra note 27, at 58. 257. Understanding Illicit Insemination, supra note 27, at 192. 258. See IND. CODE § 34-24-5-2 (2019). 259. Rudavsky, supra note 4. 260. Ettachfini, supra note 180. 148 INDIANA HEALTH LAW REVIEW [Vol. 18:123 medical licenses either suspended, denied, or revoked.261 Therefore, illicit insemination should also be categorized as a sex crime because this classification may better deter future perpetrators.262 Further, this classification is superior because it may involve a more serious felony level and require perpetrators to register as sex offenders.263 This could additionally deter offenders by removing a perpetrator from society and putting those with similar objectives on notice.264 Second, the Senate Enrolled Act 174 is insufficient because it does not fill the gap left by Indiana’s malicious mischief statute. For instance, the Act does not better allow for the prosecution of individuals who illicitly inseminate their patients and recklessly infect them with an infectious or communicable disease.265 Therefore, the Act does not hold future fertility fraud perpetrators accountable for the improper screening of gametes, an important interest of intended parents. To better protect these individuals, the Indiana Legislature must amend the Senate Enrolled Act 174. And, similar to Indiana’s malicious mischief statute, the Legislature should impose a higher criminal penalty for physicians who inseminate their patients with their own improperly screened or infected gametes.266 IV. INDIANA SHOULD ADOPT A VERSION OF THE UNIFORM PARENTAGE ACT This section describes the UPA and argues that Indiana should adopt a version of it. Initially, this section describes the UPA and explains its statutory scheme. Then, this section compares Indiana law to the UPA and claims that intended parents would be better protected if a version of the UPA was implemented. A. The Uniform Parentage Act The UPA “is a set of uniform rules for establishing parentage, which may be adopted by state legislatures on a state by state basis.”267 In 1973, the National Conference of Commissioners on Uniform State Laws promulgated the first UPA.268 This version of the UPA “declare[d] equal rights for children regardless 261. See IND. CODE § 25-1-1.1-2 (2019). 262. See Elizabeth J. Letourneau et al., Evaluating the Effectiveness of Sex Offender Registration and Notification Policies for Reducing Sexual Violence Against Women, MED. U.S.C. (Sept. 2010), https://www.ncjrs.gov/pdffiles1/nij/grants/231989.pdf [https://perma.cc/7CQE-5A4L]. 263. See IND. CODE § 35-42-4-1 (2019). 264. See JOSHUA DRESSLER & STEPHEN P. GARVEY, CASES AND MATERIALS ON CRIMINAL LAW 30-51 (West Academic Publishing, 7th ed. 2016) 265. See IND. CODE § 34-24-5-2 (2019). 266. See IND. CODE § 35-45-16-2 (2019). 267. Uniform Parentage Act Law and Legal Definition, USLEGAL, https://definitions. uslegal.com/u/uniform-parentage-act/ [https://perma.cc/VYD5-2ZJG] (last visited Feb. 1, 2020). 268. DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY § 31:8 (2019-2020 ed. 2019). 2021] DADDY DOCTOR 149 of their parents’ marital status.”269 At the time, several states discriminated against illegitimate children.270 In fact, these children were often deemed non-persons with no legal right to paternal support and unable to inherit from relatives.271 Through the late 1960s and early 1970s, the Supreme Court of the United States (the “Supreme Court”) struck these notions down in Gomez v. Perez and Stanley v. Illinois.272 The Supreme Court began asserting that discrimination of illegitimate children was unconstitutional on equal protection grounds.273 The UPA was introduced soon thereafter, and it was implemented by nineteen states in some manner.274 During the early 2000s, the UPA underwent its first substantial revision.275 This update “added a streamlined, administrative voluntary acknowledgment of paternity process for establishing parentage of nonmarital children as well as provisions regarding genetic testing.”276 Additionally, it revised the UPA’s provisions concerning ART and added a provision on surrogacy agreements.277 These provisions recognized the parentage of children born from surrogacy agreements.278 Because surrogacy was a new process at the time, only eleven states adopted some form of the 2002 UPA.279 The UPA was most recently updated in 2017 in response to the Supreme Court’s ruling in Obergefell v. Hodges, which recognized the fundamental right of same-sex couples to marry.280 While this new update’s central impulse was to revise the UPA to better protect children of same-sex couples, it also revised the UPA’s surrogacy provisions and added new provisions that addressed the rights of donor-conceived children.281 The 2017 update revised the UPA in five essential ways.282 However, only one revision is fundamental for this Note: the introduction of Article 9, which “addresses the right of children born through [ART] to access medical and identifying information regarding any gamete 269. See Uniform Parentage Act Law and Legal Definition, supra note 267. 270. Courtney G. Joslin, Uniform Parentage Act (2017): What You Need to Know, A.B.A. (May 11, 2018), https://www.americanbar.org/content/dam/aba/events/family_law/2018/16uniform parentage.pdf [https://perma.cc/FFN2-MVG8]. 271. Solangel Maldonado, Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children, 63 FLA. L. REV. 345, 350 (2011). 272. See Gomez v. Perez, 409 U.S. 535 (1973); Stanley v. Illinois, 405 U.S. 645 (1972). 273. Maldonado, supra note 271, at 351. 274. FAIGMAN ET AL., supra note 268. 275. Id. 276. Joslin, supra note 270, at 1. 277. Melissa Henig, What Is the Legal Definition of a Parent Under the Uniform Parentage Act?, LAWYERS.COM, https://www.lawyers.com/legal-info/family-law/paternity/legal-definition- parent-under-uniform-parentage-act.html (last visited Feb. 1, 2020) (copy on file with the author). 278. Id. 279. Id.; FAIGMAN ET AL., supra note 268, at n.2. 280. FAIGMAN ET AL., supra note 268; see Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 281. Henig, supra note 277; Joslin, supra note 270. 282. FAIGMAN ET AL., supra note 268. 150 INDIANA HEALTH LAW REVIEW [Vol. 18:123 providers.”283 Specifically, Article 9 provides that a gamete bank or fertility clinic must collect identifying donor information and medical history at the time of donation.284 Identifying information includes one’s full name, birth date, permanent address, and current address.285 On the other hand, medical history involves any present and past illness of the donor in addition to the family, social, and genetic histories of the donor.286 In addition, Article 9 specifies that, upon request, a gamete bank or fertility clinic must make a good-faith effort to provide a donor-conceived child with his or her donor’s identifying information if the child is at least eighteen years of age.287 If a donor-conceived child is under eighteen years of age, then a gamete bank or fertility clinic must make a good-faith effort to provide the child’s parent or guardian with access to the donor’s nonidentifying medical history.288 Finally, with respect to recordkeeping, Article 9 requires a gamete bank or fertility clinic to collect and maintain each gamete donor’s identifying information and medical history.289 Moreover, in accordance with federal and state laws, a gamete bank or fertility clinic must collect and maintain gamete screening and testing records as well as comply with reporting requirements.290 B. The Uniform Parentage Act and Indiana This subsection argues that the Indiana Legislature should adopt a version of the UPA. First, it compares Indiana law and the UPA. Then, it explains how intended parents are better protected if a version of the UPA is adopted in Indiana. 1. Comparing Indiana Law and the UPA Thus far, only four states have enacted the 2017 UPA, while six others are 283. Joslin, supra note 270, at 9 (emphasis omitted). 284. UNIF. PARENTAGE ACT § 903 (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 2017). 285. UNIF. PARENTAGE ACT § 901 (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 2017). 286. Id. 287. UNIF. PARENTAGE ACT § 905 (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 2017). 288. Id. 289. UNIF. PARENTAGE ACT § 906 (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 2017). 290. Id. 2021] DADDY DOCTOR 151 introducing it.291 Unfortunately, Indiana is not one of these states.292 Though, Article 9 of the UPA and Indiana law are alike in some ways. Similar to Article 9, Indiana requires that practitioners obtain the following information from sperm donors: (1) name, (2) address, (3) birth date, and (4) social security number.293 A practitioner is a person who “performs donor insemination” or “receives, processes, or stores semen intended for donor insemination.”294 Indiana’s requirements are similar to Article 9 in that they obligate gamete banks or fertility clinics to acquire identifying information on sperm donors. Additionally, comparable to the recordkeeping provision in Article 9, Indiana practitioners must keep records of identifying information and the results of mandated testing.295 Alternatively, unlike Article 9, Indiana does not require gamete banks or fertility clinics to obtain a sperm donor’s medical history.296 Further, Indiana does not provide for donor-conceived children or intended parents to access a sperm donor’s identifying or medical information.297 Even previously proposed law, such as Indiana’s failed Gamete Donation Act, did not allow for this access.298 2. Adopting a Version of the UPA Better Protects Indiana Intended Parents Although Indiana recently implemented the Senate Enrolled Act 174 and has laws aimed at gamete donation, the State’s fertility industry, in general, is still largely unregulated.299 Therefore, the Indiana Legislature must ensure that the State’s laws are wholly protecting the interests of families created by gamete donation. As discussed above, intended parents have an interest in receiving properly screened gametes.300 Indiana, currently, only tests sperm donations for communicable or sexually transmitted infections.301 Though, a physician may order more tests for a donor “to rule out the presence of [other] infectious disease[s].”302 Adopting Article 9 would expand this area of Indiana law. For example, it would require the collection of a sperm donor’s full medical history, 291. Parentage Act, UNIFORM L. COMM’N, https://www.uniformlaws.org/committees/ com m u n ity-h ome?C om m u n ityKey= c4 f3 7 d2 d-4d20-4be0 -8 2 5 6 -2 2 dd7 3 af0 6 8 f [https://perma.cc/RP36-7BLG?type=image] (last visited Aug. 20, 2020). 292. Id. 293. IND. CODE § 16-41-14-12 (2019). 294. IND. CODE § 16-41-14-4 (2019). 295. See IND. CODE § 16-41-14-14 (2019). 296. See generally IND. CODE § 16-41-14-1 to -20 (2019). 297. See generally id. 298. See supra Section II. 299. See id. 300. See supra Section III. 301. See IND. CODE § 16-41-14-6 (2019); see 410 IND. ADMIN. CODE § 25-2-2 (2019). 302. 410 IND. ADMIN. CODE § 25-2-4 (2019) (emphasis added). 152 INDIANA HEALTH LAW REVIEW [Vol. 18:123 including present and past illnesses.303 Moreover, under Article 9, a sperm donor’s genetic history must be collected.304 With respect to receiving properly screened gametes, this addition to Indiana law would allow intended parents to confirm a donor’s identity, his physical resemblance to the husband, and his disease-free status.305 Therefore, this addition would better protect intended parents from fertility fraud, sperm bank negligence, and donor dishonesty.306 Also, the implementation of Article 9’s recordkeeping provision would likely have the same effect on the interests of intended parents. Adopting Article 9 would better protect intended parents by increasing regulation and oversight of the Indiana fertility business. These heightened procedures would probably have a deterrent effect on future fertility fraud perpetrators. They could also remedy sperm bank negligence or misrepresentation cases.307 For instance, in Cline’s case, there were no regulations that required sperm donations to be properly tested during his period of misconduct.308 This lack of oversight likely emboldened Cline and other fertility fraud perpetrators to illicitly inseminate their own patients because, in the end, who would find out? Aside from any current law in place, allowing donor-conceived children or intended parents to access a donor’s identifying or medical information would formally answer this question. V. CONCLUSION Fertility fraud is a serious violation. Specifically, the wrongful practice shatters personal identity and has destroyed families.309 Hoosiers personally felt these effects when the reality of illicit insemination hit close to home in 2017. By 2019, Indiana enacted a fertility fraud law to hold illicit inseminators, like Cline, accountable for their misconduct.310 The number of fertility fraud cases and incidents of sperm bank negligence is growing.311 Such reveals a significant problem with the United States fertility industry, and, in Cline’s case, the Indiana fertility industry. As a result, the following question is posed: should the Indiana fertility business be more 303. UNIF. PARENTAGE ACT § 901 (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 2017). 304. Id. 305. See Understanding Illicit Insemination, supra note 27, at 169. 306. See Harnicher v. Univ. of Utah Med. Ctr., 962 P.2d 67, 72 (Utah 1998) (rejecting an intended parent’s claim for emotional distress after a donor mix-up ruined his chances of resembling the donor-conceived child). 307. See generally id. at 72; see generally Zelt v. Xytex Corp., 766 F. App’x 735, 739, 741 (11th Cir. 2019). 308. Understanding Illicit Insemination, supra note 27, at 169. 309. Id. at 113; Fox et al., supra note 14. 310. H.B. 1369, 121st Gen. Assemb., 1st Reg. Sess. (Ind. 2019). 311. Mroz, supra note 22. 2021] DADDY DOCTOR 153 regulated to better protect the interests of intended parents? The answer is yes. Although Indiana’s fertility fraud law may be the first of its kind,312 the Indiana Legislature should implement a more stringent criminal penalty in order to better protect intended parents in the State. The benefits of adopting such a penalty are illustrated by comparing the Senate Enrolled Act 174 to gaps in Indiana law and examining the Act in light of the interests of intended parents. Additionally, adopting a version of the UPA will improve protections for Indiana intended parents. For example, in comparison to current Indiana law, the UPA’s provisions regarding gamete donation are extensive and may assist in holding illicit inseminators or negligent sperm banks more accountable. Because technology will continue to reveal fertility fraud or sperm bank negligence,313 the Indiana Legislature must take appropriate measures to combat it. While the Senate Enrolled Act 174 is a step in the right direction, there is still room for improvement. 312. Zhang, supra note 8. 313. See Garrett, supra note 15; Fox et al., supra note 14.