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FERTILITY FRAUD: EXPLORING THE LEGAL GAPS IN INDIA
VIS A VIS THE UNITED STATES
ARUSHI BAJPAI
abajpai@jgu.edu.in
Assistant Professor in Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana
(India). Her area of interest are Criminal Law, International Criminal Law. She has been
teaching Criminal Law since past 5 years. She recently did The Hague Academy of Public
International Law, The Hague Netherlands Course on Full Scholarship.
ORCID ID-0000-0002-9468-249X.
AKASH GUPTA
akash@jgu.edu.in
Assistant Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana
(India). He has been teaching arbitration for 5 years. He also got the opportunity to attend the
most famous "Paris Arbitration Academy" Course on full scholarship. His area of interest are
Arbitration, Mediation and Negotiation. ORCID ID- 0000-0001-9457-7932.
SHAMBHAVI SINHA
21jgls-ssinha2@jgu.edu
She is currently in her third year at Jindal Global Law School, part of O.P. Jindal Global
University, located in Sonipat, Haryana (India). Her academic focus leans heavily towards
research, particularly in the realms of criminal law and public international law.
Abstract
Infertility is an issue that many couples worldwide are facing. There are numerous individuals
who seek treatment for this condition. However, those who treat infertility often handle all
sperm samples equally, without differentiating between the sperm of the intended parents
and that of others. This raises concerns about fertility fraud, where people intentionally
exchange sperm samples. Many countries have recognized this as a sexual offense, but in
India, there is currently no specific law addressing this issue. This question was initially raised
when a case of this fraud occurred in the United States. This paper addresses all the related
issues and provides a comparative analysis of the laws in India and the United States.
Keywords
Infertility, Fraud, India, US, Sexual offence, Laws
Resumo
A infertilidade é um problema que muitos casais em todo o mundo estão a enfrentar. Há
muitos indivíduos que procuram tratamento para esta condição. No entanto, os profissionais
que tratam a infertilidade tratam frequentemente todas as amostras de esperma da mesma
forma, sem diferenciar entre o dos pais pretendidos e o de outros. Este facto suscita
preocupações quanto à fraude na fertilidade, em que as pessoas trocam intencionalmente
amostras de esperma. Muitos países reconheceram esta prática como uma ofensa sexual,
mas na Índia não existe atualmente nenhuma lei específica que trate desta questão,
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 15, Nº. 1 (May 2024 – October 2024), pp. 307-321
Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
308
inicialmente levantada quando ocorreu um caso de fraude nos Estados Unidos. O presente
documento aborda todas as questões relacionadas e apresenta uma análise comparativa das
leis da Índia e dos Estados Unidos.
Palavras-chave
Infertilidade, Fraude, Índia, EUA, Crime sexual, Legislação.
How to cite this article
Bajpai, Arushi, Gupta, Akash & Sinha, Shambhavi (2024). Fertility Fraud: Exploring the Legal Gaps
in India Vis a Vis the United States. Janus.net, e-journal of international relations. VOL 15, Nº.1,
May-October, pp. 307-321. DOI https://doi.org/10.26619/1647-7251.15.1.17
Article received on October 8, 2023, and accepted for publication on February 12, 2024.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 15, Nº. 1 (May 2024 – October 2024), pp. 307-321
Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
309
FERTILITY FRAUD: EXPLORING THE LEGAL GAPS IN INDIA
VIS A VIS THE UNITED STATES
ARUSHI BAJPAI
AKASH GUPTA
SHAMBHAVI SINHA
Introduction
Infertility is a health issues prevalent worldwide, one in four couple face infertility in
developing nation
1
. As per World Health Organization’s recent estimation, around 48.5
million individuals and 186 million couples around the world
2
are suffering from infertility.
While developed nations have access to infertility diagnosis and treatment, many
countries do not have easy access to fertility treatments, for examples countries in Africa
such as Angola, Chad, Congo, Mali, and Somalia
3
. In fact, doctors have even claimed that
“Assisted reproductive technology cannot be done in Africa as it is done in Europe
4
”. In
fact, even if the countries do have fertility treatment only a few countries have public
funds for fertility treatment such as Sweden, Netherlands, and United Kingdom (with
conditions for the eligibility to the fund) but other countries such as Taiwan and India
fertility treatment is provided by the private sector and public fund is not provided
5
. In
India cost of fertility treatment can range from hundred fifty to five thousand US Dollars
1
SingleCare, “See the Most Recent Fertility Stats” (The CheckupFebruary 4, 2023)
https://www.singlecare.com/blog/news/infertility-statistics/#:~:text=Epidemiology%20of%20infertility,-
Infertility%20is%20becoming&text=One%20in%204%20couples%20in,million%20couples%20experience
%20infertility%20worldwide, accessed October 5, 2023
2
SingleCare Team, “See the Most Recent Fertility Stats” (Marissa Walsh edThe CheckupFebruary 4, 2023)
https://www.singlecare.com/blog/news/infertility-statistics, accessed December 15, 2022
3
Ombelet W and Onofre J, “IVF in Africa: What Is It All about?” (Facts, views & vision in ObGynMarch 2019)
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6822948/, accessed 25 December 2022.
4
Hörbst V, “‘You Cannot Do IVF in Africa as in Europe’: the Making of IVF in Mali and Uganda”
(ScienceDirectJune 1, 2016) https://www.sciencedirect.com/science/article/pii/S240566181630020X,
accessed December 20, 2
5
Ndegwa S and Kelly SE, “Status of Public Funding for In Vitro Fertilization in Canada and Internationally”
(CADTH2010) https://www.cadth.ca/sites/default/files/pdf/Public_Funding_IVF_es-14_e.pdf, accessed
December 26, 2022
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e-ISSN: 1647-7251
Vol. 15, Nº. 1 (May 2024 – October 2024), pp. 307-321
Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
310
(with sperm donation it is hundred fifty US Dollars, fertility treatment with their own eggs
is two thousand US Dollars and fertility treatment with egg donation is five thousand US
Dollars)
6
.Whereas, in Singapore it ranges from six hundred to twenty thousand US
Dollars (with sperm donation it is six hundred US Dollars, fertility treatment with their
own eggs is twelve thousand US Dollars and fertility treatment with egg donation is
between fifteen to twenty thousand US Dollars)
7
. Therefore, as observed, while private
sectors do provide fertility treatments, it is not accessible to everyone due to the
expensive nature of it without the exception of a nation being developed or not. In fact,
one of the reasons India is popular for medical tourism is because of the affordable cost
of fertility treatment as compared to the rest of the countries around with a procedure
than fifteen thousand US Dollars in United States but the same procedure is done in India
between three to four thousand US Dollars
8
. Which is most probably the reason for the
rise in illegal fertility clinics like mushrooms
9
. Artificial reproductive technologies are used
in fertility treatment such as In vitro fertilization, in this procedure, intensive hormone
therapy is done on the patient to boost egg production. The sperm from the husband,
partner, or donor is then implanted into these eggs. Couples who opt for any kind of
Artificial Reproductive Technology (ART) are desperate for a child of their own, as they
make this choice only failing various fertility treatments resulting from severe form of
infertility (Society for Assisted Reproductive Technology)
10
. They often decide to go on
this long and painful journey due to the tedious and long procedures of adoption or often
due to the societal pressure placed on a couple to have a child of their bloodline. However,
as there is a lack of laws overlooking the practice of ART, it has led to those receiving
these treatments vulnerable to fertility frauds due to the lack of proper laws regarding
fertility treatments and frauds
11
.
Fertility fraud happens when the health care provider misrepresents one or more of the
following, i.e., the source of reproductive material, the way the reproductive material will
be used and the risks, benefits and cost associated with each procedure. Fraudulent
insemination is arguably one of the most egregious types of fertility fraud in recent, it is
when a doctor artificially inseminates a patient with his own sperm without the patient's
knowledge or consent, it is called fraudulent insemination
12
. The patient is typically made
to believe the sperm was either her husband's or that of a thoroughly vetted anonymous
6
Suaza C, “IVF Price Comparison in Different Countries” (MedicalTourism.ReviewJune 10, 2021)
https://medicaltourism.review/articles/ivf-price-comparison-different-countries, accessed December 22,
2022
7
Idem.
8
Daddy's Digest, “The Rise of Fertility Tourism in India” (Daddy's DigestFebruary 18, 2022)
https://daddysdigest.com/the-rise-of-fertility-tourism-in-india/, accessed December 22, 2022
9
Kapil S, “Illegal Fertility Clinics Mushroom across Capital” (The Asian AgeMarch 26, 2017)
https://www.asianage.com/metros/delhi/260317/illegal-fertility-clinics-mushroom-across-capital.html,
accessed December 22, 2022
10
Society for Assisted Reproductive Technology, “Assisted Reproductive Technologies” (SART)
https://www.sart.org/patients/a-patients-guide-to-assisted-reproductive-technology/general-
information/assisted-reproductive-technologies/, accessed November 1, 2022
11
Saraswat A and Mondal O, “The Assisted Reproductive Technology (Regulation) Act, 2021: A Step Forward,
Two Steps Back?” (THE CONTEMPORARY LAW FORUMApril 21, 2022). https://tclf.in/2022/04/21/the-
assisted-reproductive-technology-regulation-act-2021-a-step-forward-two-steps-back-2/, accessed
November 5, 2022
12
Madeira, Jody Lynee (2020). 'Understanding Illicit Insemination and Fertility Fraud, from Patient Experience
to Legal Reform’, 39 Colum J Gender & L 110
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Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
311
donor such as the case of Dr. Bertold Wiesner who has allegedly father more than six
hundred children in the United Kingdom
13
.
Patients undergoing IVF are also under risk of various forms of frauds such as,
1. The embryos that were left unused can be used in another patient without the consent
of the couple, or the couple could be on the other end and receive another woman’s
eggs or couple’s embryo can be implanted during the procedure without the knowledge
or consent of either couple
14
.
2. Another form of fertility fraud is the fraudulent use of sperm. Patients with fertility
issues are frequently permitted to review information on anonymous sperm samples,
including the donor's genetic profile and personal traits. However, since the donor is
anonymous there is no guarantee whether the sperm used was not the one, they had
consented to
15
.
3. Overall fraud happens when one or more of the following are done:
(i) the donor was not screened at all.
(ii) the profile information was false.
(iii) the woman was conceived using a different sample of sperm; or the sample was
utilised more frequently than was revealed to the patient or donor
16
.
This is what had happened in the case of Dr. Reynold Boyd. He had given false
information about the donor in his case with Catherine and Paul Watt, whose sperm he
had fraudulently used by taking his sperm without his knowledge to impregnate
Catherine’s mother and had cheated to Catherine’s parents as well who were told that
the sperm donor was a medical student
17
. The reason fertility fraud must stop is because
it is a crime on many levels, it is violative of an individual’s reproductive rights and a
form sexual assault against men and women desperate for children. It is also a biomedical
crime; it unknowingly exposes the offspring to genetic disorders and predispositions. It
puts the gene pool at risk of having close relatives get married and have children without
being aware of their kinship (Stein Law Firm)
18
. Unfortunately, in India these practices
are not held as crime, so even as there are victims of such cases in India as we will
observe later this paper, they are unable to report it as there are laws explaining such
acts as crimes. This paper will present a comparative study of the laws regarding fertility
fraud in the United States of America and India because there are lot of cases in US and
13
Pinto-Correia C, ‘Fertility Rites’ (De Gruyter, 25 September 2017), https://doi.org/10.7312/gilb17094-007
accessed 28 February 2024
14
Stein Law Firm, “Fertility Fraud: What You Should Know” (Stein Law FirmJanuary 31, 2023)
https://www.steinlawoffices.com/fertility-fraud-what-you-should-know/, accessed November 1, 2022
15
Gong D and others, ‘An Overview on Ethical Issues about Sperm Donation’ (U.S. National Library of Medicine
, November 2009). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3735320/, accessed 28 February 2024
16
Cho K, Ruiter J and Dahan MH, ‘Protecting Fertility Clinics against Sperm-Related Fraud: A Call to Action’
(U.S. National Library of Medicine, June 2018). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6029996/,
accessed 28 February 2024
17
Kleeman J, “The Great Sperm Heist: 'They Were Playing with People's Lives'” (The GuardianSeptember 25,
2021). https://www.theguardian.com/lifeandstyle/2021/sep/25/the-great-sperm-heist-they-were-playing-
with-peoples-lives, accessed December 26, 2022
18
Stein Law Firm, “Fertility Fraud: What You Should Know” (Stein Law Firm January 31, 2023)
https://www.steinlawoffices.com/fertility-fraud-what-you-should-know/, accessed November 1, 2022
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e-ISSN: 1647-7251
Vol. 15, Nº. 1 (May 2024 – October 2024), pp. 307-321
Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
312
there are some laws made in some cities of US. This paper will further suggest how those
laws can be implemented in India, after some changes as per the requirements
demanded by the Indian society.
The laws against fertility fraud in the US legal system are a new addition having been
enacted only in nine states and not on a federal level
19
. There are over twenty cases of
fertility fraud in the US, two of the most notorious cases would be the case of Dr. Donald
Cline of Indiana and Dr. Kim McMorries of Texas
20
. These two cases are of upmost
importance as they not only caused public uproar but also led to change in law. In the
case of Dr. Donald Lee Cline, it was Jacoba Ballard, one of Cline’s children, who was
among the first to piece all the information together. (ref) Ballard was thirty-three when
she had started the search for her half-siblings being aware from a young age that she
was conceived through donor insemination. She had used a DNA tracing kit 23andMe in
hopes of finding some half-siblings
21
. She had been expecting one or two half-siblings
but was surprised to find that she had eight half-siblings listed on the website. This
contradicted what Cline had told his patients. He'd stated that the donors he used were
medical students. He'd stated that he only used each donor for three successful
pregnancies. However, 23andMe revealed that he'd used the same donor at least eight
times, with the resulting children born between 1979 and 1986. They found dozens of
more distant genetic matches, but no one in the 23andMe database shared enough DNA
with them to be their father. They could build a massive family tree by combing through
public records and social-media profiles, and sometimes simply asking genetic matches
about their families. It was after a lot of searching As Ballard and her half siblings
researched their family tree, one name kept popping up: Cline. It was only after much
investigation, filing a complaint with Indiana’s attorney general that Cline had used his
own sperm in patients and asking for an investigation and asking a TV channel to air the
news about the unusually high number of kids from one sperm donor. However, Cline
was only charged with obstruction of justice. Even then Cline was ultimately only fined
$500 and given a year of probation. He lost his medical license, but he had been retired
since 2009. In fact, he probably would not have even been charged had he not replied
to the Attorney General’s letter claiming that the complaint against him was a try at
defaming him and very well lying on legal ground, as he was biologically the father of
Ballard and her other half-siblings. In fact, he had even lied further to Ballard on a call
with her that he had cheated by using his own sperm only nine to ten times, when clearly
the current count of offspring resulting from his sperm is over ninety-four
22
. The reason
this man was not charged and was let go of free was because there were no laws
regarding this form of fraud at the time.
19
Idem.
20
Mroz J, “Their Mothers Chose Donor Sperm. the Doctors Used Their Own.” (The New York Times August 21,
2019). https://www.nytimes.com/2019/08/21/health/sperm-donors-fraud-doctors.html, accessed January
2, 2023
21
Zhang S, “The Fertility Doctor's Secret” (The Atlantic March 19, 2019).
https://www.theatlantic.com/magazine/archive/2019/04/fertility-doctor-donald-cline-secret-
children/583249/, accessed December 15, 2022
22
Idem.
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Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
313
The case of Dr. Donald Cline caused a massive public uproar and essentially led to the
introduction of fertility fraud laws in Indiana
23
. As of May 2019, Indiana offers both
criminal and civil remedies for fertility fraud. That is if human reproductive material is
used without the express consent of the donor created a felony offence level 6 and a civil
cause of action that the patient, their spouse, or child may bring. Attorney's fees, the
cost of fertility treatment, punitive and compensatory damages, or ten thousand US
dollars are all possible damages that the victim can claim
24
.The statute of limitations is
ten years after the child's 18th birthday (or twenty years after the procedure was
performed), or five years after the discovery of fertility fraud via DNA testing, confession
by the health care provider, or sufficient evidence
25
. However, even the state of Indiana
fails to recognize the sexual nature of the offence taking place. Cline had to masturbate
each time to obtain the semen for the IVF process and then his semen would be used by
him on his patients without their consent for using his own semen
26
.
Countries that have accepted this as a sexual offence
Texas, different from Indiana, recognized the sexual nature of the crime and hence also
recognizes this as a sexual offence. Laws in Texas were brought after the case of Dr. Kim
McMorries
27
. Wiley was conceived in the year 1986 with the semen of “Donor 106” in
McMorries’ clinic. It was in mid-2018 that she tried to communicate with McMorries after
being linked to McMorries through multiple consumer DNA matches. McMorries then
replied to her in a series of mails that he was indeed her biological father. This emotionally
disturbed Wiley who had bonded with “Donor 106” whom she presumed was her
biological father. Wiley presented this case in front of Texas legislators. Texas legislators
after hearing Wiley’s and multiple other victims decided and made it a felony sexual
assault for any Texas doctor to secretly impregnate patients with his own sperm.
However, the law, which went into effect in September 2019, is not retroactive, and the
physician whose actions inspired the reform was not prosecuted
28
.
However, Indiana and Texas are not the only states in the States have laws against
fertility fraud though. The following eight states are the states excluding Indiana and
Texas that have laws against fertility fraud in the United States:
Arkansas
In 2019, Matthew Smith learned that he was the victim of a fertility scam. His family
brought a civil lawsuit against the doctor, and Arkansas passed legislation establishing
23
Zhang S, “A Decades-Old Doctor's Secret Leads to New Fertility-Fraud Law” (The Atlantic May 9, 2019)
https://www.theatlantic.com/science/archive/2019/05/cline-fertility-fraud-law/588877/, accessed
September 5, 2022
24
Indiana Code 1976, Title 34, Article 24, Chapter 5
25
Idem.
26
Zhang S, “A Decades-Old Doctor's Secret Leads to New Fertility-Fraud Law” (The Atlantic May 9, 2019).
https://www.theatlantic.com/science/archive/2019/05/cline-fertility-fraud-law/588877/, accessed
September 5, 2022
27
Olsen L, “Conception Deception” (The Texas Observer September 15, 2020)
<https://www.texasobserver.org/fertility-fraud-east-texas-kim-mcmorries/> accessed December 1, 2022
28
Idem.
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e-ISSN: 1647-7251
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Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
314
both civil and criminal causes of action for fertility fraud
29
. As of April 2021, a patient or
spouse may file two felonies and a civil action against a health care provider who uses
his own sperm without the patient's written consent, and who reasonably should have
known the donor did not consent to its use or in the manner it is being used. The statute
of limitations runs for five years from the date of discovery, or the defendant admits to
the facts giving rise to the action. Attorney's fees, treatment costs, and economic,
compensatory, and punitive damages may be awarded. This protects those who submit
their sperms/ovum for the purposes other than donating it for some other person’s use
30
.
However, it once again fails to recognize the victims as victims of sexual offence. It also
fails to recognize the victims whose reproductive materials have been used without their
consent.
Arizona
In 2020, Kristen Finlayson learned that she was the victim of in vitro fertilisation fraud.
She testified in support of a law in Arizona that was passed in 2021 against fertility fraud
after her family filed a civil lawsuit against the doctor. This bill gave victims a civil cause
of action
31
.
As of March 2021, the patient, the patient's spouse, and the child can file a civil action
against a health care provider who used their own reproductive material without the
patient's written consent. There is a possible award of compensatory and punitive
damages, as well as liquidated damages of $10,000. Each child has his or her own cause
of action. A civil action may be filed within five years of the discovery of sufficient
evidence for a case or the defendant's confession
32
. However, Arizona not only fails to
recognize it as asexual offence but fails to recognize it as an offence all together.
California
California in 1996 itself made it a crime to use reproductive material other than that
specified on the donor's consent form (except for sperm donors) and to implant
reproductive material without the recipient's written consent. Violations are punishable
by up to five years in prison and a $50,000 fine
33
. California while was earliest in the race
to recognize the importance of laws against fertility fraud and is still much ahead of other
states by not only recognizing it as criminal offence not only punishable with prison but
also with a hefty sum as a form of compensation.
29
Evewiley, “Stories Behind the Legislation...” (Evewiley2022). https://evewiley.com/fertility-fraud-cases,
accessed May 5, 2023
30
Arkansas Code 1987, Title 16, Subtitle 7, Chapter 118, s 16-118-117
31
Evewiley, “Stories Behind the Legislation...” (Evewiley2022). https://evewiley.com/fertility-fraud-cases
accessed May 5, 2023
32
Arkansas Code 1987, Title 16, Subtitle 7, Chapter 118, s 16-118-117
33
California Penal Code 1872, Part 1, Title 9, Chapter 12, s 376g
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Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
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Colorado
In October 2019, Maia Emmons-Boring and seven other families sued Dr. Jones and
Women's Health Care of Western Colorado, the clinic where he worked. He was charged
with medical malpractice, fraud, and contract violation. It was this case that led to new
legislation to be made in regard to fertility frauds. As per July 2020, a felony offence
(Class 6) and civil liability was created in Colorado, which can be brought by the patient,
spouse/partner, or child, with liability for each child. Attorney's fees may be awarded.
Damages are $50,000 or reasonable compensation for injuries. Other legal remedies may
be pursued. A Class 6 felony offence carries a sentence of 18 months in prison and a fine
of $1,000 to $100,000. The statute of limitations begins when the offence is discovered.
Fertility fraud is now listed as an example of unprofessional behaviour
34
.
Florida
An offspring of a doctor daddy case in Florida contacted Eve Wiley in 2019. They chose
to settle in mediation after she assisted them in getting in touch with an attorney. She
represented them in Florida behind closed doors, working with Senator Lauren Book and
Representative Jenne
35
. As result in June 2020, a third-degree felony offence was created
for using material without the patient's specific consent, punishable by up to 5 years in
prison and a $5,000 fine. If a doctor uses their own material, it is a second-degree felony
punishable by up to 15 years in prison and a $10,000 fine. The patient's consent to an
anonymous donor is not a defence. It is necessary to register with the police. The statute
of limitations begins when the offence is discovered. Fertility fraud is also listed under
enumerated unprofessional conduct
36
.
Iowa
As per July 2020 it is a sexual offense if a health professional uses human reproductive
material that the patient did not expressly consent to. It is a crime to give a patient false
information about assisted reproduction, including the material used and the donor's
identity and medical history, and for a health professional or facility to give a patient
material in a way that neither the donor nor the patient consented to (a request for
anonymous donor is not a defense). Either crime gives rise to a private cause of action
for the patient, spouse, children, and donor. If a doctor used his own sperm, in addition
to compensatory or punitive damages, he must pay back child support and pay for the
offspring's postsecondary education - no legal parent-child relationship is created. A
violation can result in the revocation of a health professional's or a health facility's
licence
37
.
34
O HOUSE BILL 20-1014 2020
35
Evewiley, “Stories Behind the Legislation...” (Evewiley2022). https://evewiley.com/fertility-fraud-cases
accessed May 5, 2023
36
Florida Senate, “Bill Analysis and Fiscal Impact Statement - Florida Senate” (flsenateFebruary 28, 2020).
https://www.flsenate.gov/Session/Bill/2020/698/Analyses/2020s00698.rc.PDF, accessed December 1,
2022
37
Iowa Legislative Services Agency, (Iowa legislature - billbookJune 14, 2022).
https://www.legis.iowa.gov/legislation/BillBook?ga=89&ba=SF529 accessed November 1, 2022
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 15, Nº. 1 (May 2024 – October 2024), pp. 307-321
Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
316
Kuntucky
Susan Crowder discovered decades later that the daughter she had conceived through
IVF, was not through an anonymous donor but her own doctor
38
. She worked with other
victims and Dr. Jody Medeira to pursuit House Bill 402 which was sponsored by
Representative Deanna Frazier Gordon
39
. As a result, as per April 2022, use of human
reproductive material other than that to which the patient has consented, or use of the
health care provider's own material without the patient's prior knowledge and consent.
With a five-year statute of limitations after DNA discovery and a class D felony for such
actions, it creates a cause of action for the patient, spouse, offspring, and donor whose
materials were used in a manner other than what was consented to for compensatory
and punitive damages. Kentucky provides a cause of action for even to those whose
materials were used for purposes other than they had consented for
40
.
Utah
Since March 2021 a third-degree felony is committed by a health care provider who uses
their own games without the patient's written consent. Utah is the only state which while
does recognize fertility fraud as a felony, but is vague about it, to the point it can be
deemed of no benefit for the victims. It can be seen that this was brought in action
without much consideration put into it
41
.
India
India as mentioned before does not currently have any specific laws against fertility
fraud. As mentioned before in this paper both Indian legal system and American have
legal systems closely derived from English laws. Therefore, with a few changes the laws
currently in action the States can be applied in India as well. Current regulations as per
the Assisted Reproductive Technologies (ART) Act
42
(hereinafter to be referred as the
Act) which was enacted in December 2021 and came to force in January 2022, every ART
clinic and bank must be registered with the National Registry of Banks and Clinics of
India, which shall maintain a central database of such institutions' information. Such
clinics and banks are registered for five years and can be renewed for another five. If the
institution violates the Act, it may be canceled or suspended. Clinics are not permitted to
provide a child of a specific gender and must screen for genetic diseases before
implanting an embryo in a woman's body.
This Act defines offences as abandoning or exploiting children born through ART; selling,
purchasing, or trading embryos; exploiting the couple or donor in any way; and
38
McAlister S, “Doctor Used Own Semen to Impregnated Patient without Her Knowledge. Now, She's on a
Mission to Make Fertility Fraud Illegal in Kentucky” (whas11.comFebruary 27, 2022).
https://www.whas11.com/article/news/investigations/fertility-fraud-criminalized-kentucky-bill-susan-
crowder-dr-jody-medeira/417-44eb51d0-f38f-4bb3-bdf9-60b145bcd731, accessed May 5, 2023
39
Evewiley, “Stories Behind the Legislation...” (Evewiley2022). https://evewiley.com/fertility-fraud-cases
accessed May 5, 2023
40
Kentucky Revised Statutes 1942, Title 26, Chapter 311, s 311.373
41
UT House Bill 192 2021
42
The Assisted Reproductive Technologies (Regulation) Act 2021
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Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
317
transferring an embryo into a male or an animal
43
. For the first time, such offences may
result in a fine of Rs 5 to 10 lakhs subsequent offences are punishable by 8 to 12 years
in prison and a fine of Rs 10 to 20 lakh Rupees
44
. And only on the basis of a complaint
from the National or State Board will a court take cognizance of an offence
45
and no
offence punishable by this Act can tried in a court lower than that of a Metropolitan
Magistrate or a Judicial Magistrate of the first class making the process even more
complicated
46
. All the offences under this Act are cognizable but they are also bailable
notwithstanding anything mentioned in the CrPC 1973
47
i.e., Code of Criminal Procedure
1973
48
.
Reforms
The Act however fails to recognize the seriousness of the offence and has written of the
offences in a vague manner which leaves huge scope and loophole for further offences
to be committed. “Exploitation” for example can be overlooked as simple monetary
exploitation and overlooks the sexual exploitation and trauma that a donor or couple
would have to go through. The Act also fails to provide relief to those who have suffered
from the fraud but have discovered of the fraud after the birth of the child. It has not
provided any time duration and who are the parties that can lodge the complaint. As in
such cases not only are the couples and/or donors the victims but also the children at
times and hence should have fair chance to lodge complaint as a victim as well which the
Act fails to recognize as well. Also, the punishment doesn’t seem to mention the
suspension or the expulsion of the license of the medical practitioner, failing to realise
that fertility fraud is as well a medical offence. Overall, there needs to much work that
needs to be done regarding fertility fraud to provide justice and relief to the victims of
fertility fraud. Following are the reforms based on the active American laws against
fertility fraud that are adjusted as per the Indian legal system:
An option should be created for all the victims of the fertility fraud that is the couple, the
donor and the offspring. A limit of filing a FIR within a year of discovering the fraud
(Arkansas). Giving a patient false information about assisted reproduction, including the
material used as well as the donor's identity and medical history, should be considered
as a crime, as should giving a patient human reproductive material in a way that neither
the donor nor the patient consented to and request for an anonymous donor should not
constitute as defence (Iowa). The insertion of the sperm of the doctor or the medical
practitioner or of any donor for whom the patient has not given explicit consent should
be constituted as while not rape but still as a form of sexual offence similar to how section
376C
49
of the Indian Penal Code treats sexual intercourse with a person in authority.
There should also be civil action and compensation available to all the victims that is the
couple, the donor, and the offspring (Arizona). And this compensation should be available
to each one of the offspring separately (Arizona). And the accused should also pay for
43
The Assisted Reproductive Technologies (Regulation) Act 2021, s 33 (1)
44
The Assisted Reproductive Technologies (Regulation) Act 2021, s 33 (2)
45
The Assisted Reproductive Technologies (Regulation) Act 2021, s 35 (1)
46
The Assisted Reproductive Technologies (Regulation) Act 2021, s 35 (2)
47
The Assisted Reproductive Technologies (Regulation) Act 2021, s 36
48
Code of Criminal Procedure 1973
49
The Indian Penal Code 1860, s 376C
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Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
318
the sum of attorney’s fee or any other legal remedy that the victim had to face regarding
this case (Colorado). As a punishment the medical practitioner or the doctor should face
expulsion of his medical license along with 8 to 12 years of prison time and fine of 10 to
20 lakh Rupees. And most importantly the reformed laws should be retrospective in
nature so that only future victims but also the victims already harmed are able to get the
justice they deserve.
Remedies avaliable
However, as we do not have any stringent and specific law in action against fertility fraud
in India, a remedy other than the one provided by the Act would be section 42
50
0 of the
Indian Penal Code on cheating which is defined in section 415
51
of the Indian Penal Code
which states that Whoever, by deceiving any person, fraudulently or dishonestly induces
the person so deceived to deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if he were not so deceived, and which
act or omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property, is said to "cheat" (explanation.—A deception within the meaning
of this section is a dishonest concealment of facts). In the case of fertility fraud, the
sperm and ovum of the donor can be regarded as their property and the misuse of their
human reproductive material, or the deceptive use of the material can be considered as
cheating the donors. Whereas the patients can approach this situation under section
416
52
of the Indian Penal Code on cheating by personation which states that a person is
said to "cheat by personation" if he cheats by pretending to be someone else, or
knowingly substituting one person for another, or representing that he or such other
person is someone other than what he or such other person is (explanation.—Whether
the individual personated is a real or fictitious person, the offence is committed). In the
case that an individual uses the reproductive of a donor on the patient that they had not
consented to while deceiving them into believing that it was the donor, they had
consented to the patient can use this section. Another situation where a patient can use
section 416 would be where an individual has deceived the patient into believing that
they are a licensed medical practitioner licensed to carry out such practice. Both are
situation which have already occurred but have left the victims without justice due to the
lack of laws and regulation in place. There has also been a case
53
where a minor girl was
violated by her stepfather, with the knowledge mother, who along with her stepfather
would force her under medical procedures to donate her ovum (done more than 3 times)
without her consent. Even when her stepfather was convicted, he was only convicted for
assaulting her, but not for violating her by forcing to follow through the medical
procedure. While it may seem satisfactory that he was punished for sexual assault, but
he was not punished for the other form in which he had sexually violated her. The victim
(i.e., minor girl) received justice only partially. She felt violated not only when being
50
The Indian Penal Code 1860, s 420
51
The Indian Penal Code 1860, s 415
52
The Indian Penal Code 1860, s 416
53
Nath A, “Woman Forces Teen Daughter to Donate Eggs to Fertility Clinic, Arrested” (India TodayJune 4,
2022). https://www.indiatoday.in/crime/story/woman-tamil-nadu-erode-daughter-donate-eggs-fertility-
clinic-arrested-embryo-1958118-2022-06-03 accessed May 6, 2023
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Vol. 15, Nº. 1 (May 2024 – October 2024), pp. 307-321
Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
319
assaulted by her stepfather, but also every time she was under the medical procedure to
which she had consented. Therefore, unless until much more stringent laws are brought
about in force victims will only be able to justice partially.
Conclusion
United States of America is not the only the country that has enacted laws against fertility
fraud. Other countries such as New Zealand
54
with its Human Assisted Reproductive
Technology Act 2004
55
, Canada
56
with its Assisted Human Reproduction Act 2004
57
and
United Kingdom
58
with its Human Fertilisation and Embryology Act 1990
59
. United
Kingdom was one of the earliest countries to introduce laws regarding assisted
reproductive technologies by enacting the Human Fertilisation and Embryology Act
60
in
1990 itself. In fact, the first IVF-baby in India and second in the world was born in 1978
61
.
Assisted Reproductive Technologies (ART) Act 2021
62
was made active in 2022, that is
more than four decades after this technology was introduced in India. Indian legislature
was not only late in introducing any form of regulation in India but also complacent about
the issue. This issue is rampant and concerning, it may not seem large scale because
there are not many records, but the reasons such records are not there is because people
do not have the provisions under which they can report the wrong that has been
committed against them. It took the state forty-four years to clarify simply that the donor
of the child conceived through IVF did not have any legal rights towards the said child
63
.
In an era where the society is moving at a pace faster than ever, the law should not keep
up but rather be one step ahead of society. This paper has argued that the laws currently
present in India against fertility fraud are not sufficient and needs to be modified. The
Act in power right now leave aside providing protection against fertility fraud, it does not
even acknowledge or define fertility fraud. A case like Dr. Kim McMorries or Dr. Donald
Cline’s should not happen in India for it to take an action. It is important to empathize
with the couples who come to receive these treatments with hope for a child after losing
trying all other possible methods. The process in which a child is conceived with the
artificial reproductive technologies is painful beyond the understanding of anyone who
has not themself experienced the pain that comes along with hope. Couples go through
54
Advisory Committee on Assisted Reproductive Technology (Guidelines for family gamete donation, embryo
donation, the use of donated eggs with donated sperm and clinic assisted surrogacy2020).
https://acart.health.govt.nz/assets/Uploads/ACART/Publications/donation-and-surrogacy-guidelines-
18august2020.pdf, accessed May 5, 2023
55
Human Assisted Reproductive Technology Act 2004
56
Health Canada, “Consent to Use Human Reproductive Material and In Vitro Embryos” (Canada.caFebruary
5, 2020). https://www.canada.ca/en/health-canada/services/drugs-health-products/biologics-
radiopharmaceuticals-genetic-therapies/legislation-guidelines/assisted-human-reproduction/consent-
human-reproductive-material-vitro-embryos.html accessed May 6, 2023
57
Assisted Human Reproduction Act 2004
58
The Fertility & Gynaecology Academy, “Legal Information” (The Fertility & Gynaecology Academy April 11,
2022). https://www.fertility-academy.co.uk/legal-information/, accessed May 6, 2023
59
Human Fertilisation and Embryology Act 1990
60
Idem.
61
IVF Specialist, “Louise Brown: The First Test Tube Baby in the World” (IndiraIVFApril 2022).
https://www.indiraivf.com/blog/louise-brown-the-first-test-tube-baby-in-the-
world#:~:text=Test%20Tube%20baby,The%20name%20of%20the%20first%20Indian%20test%20tube
%20baby%20is,baby%20through%20the%20IVF%20procedure, accessed May 6, 2023
62
Assisted Reproductive Technologies (ART) Act 2021
63
Idem.
JANUS.NET, e-journal of International Relations
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Fertility Fraud: Exploring the Legal Gaps in India Vis a Vis the United States
Arushi Bajpai, Akash Gupta, Shambhavi Sinha
320
this process even though it is considered taboo within the Indian society and taunted by
the society. It is important to protect such people and provide them justice if the
protection was breached by someone who had legal responsibility towards them. This
paper has suggested reforms that can be brought as actions against fertility fraud based
on the laws currently in action in the United States of America against fertility fraud. The
reforms in this paper are suggested keeping in mind the unique diverse society and legal
system of India.
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