Sperm banks have been caught delivering incorrect sperm samples... by the parents who were inseminated

‘Banks’ have been mixing up sperm donor vials, resulting in what Jacqueline Mroz discovers is both parents and children questioning their true paternity and the ethics behind the banks and fertility clinics

Sperm and embryo samples are monitored in Birmingham (Getty)

Seventeen years ago, when she was in her 30s, Cindy and her female partner decided they wanted to have children. The couple spent hours pouring over sperm donor profiles, finally settling on a man with a clean medical record and few health issues in his family. He was an anonymous donor, and they knew him only by his identifying number.

Cindy gave birth to a healthy baby boy. Eventually the couple used the same donor to conceive again – and soon enough they were raising two boys. When they were older, the boys found some of their half siblings by entering the sperm donor’s number into an online database. Eventually the parents of the half siblings decided to have them all take DNA tests.

The results were not what anyone expected: Cindy’s boys were not related to the other children. As it turned out, the sperm bank had sold her sperm not from the man she had carefully selected, but from a completely different donor. She discovered the identity of the man whose sperm she was given and learned that his medical history was far from pristine. A grandmother had died of brain cancer at the age of 60, and a grandfather had suffered from Alzheimer’s. Another grandmother had died of heart disease.

“I felt like they tainted the gene pool for my kids,” Cindy says of the sperm bank. (She asked that her full name be withheld to protect the privacy of her children.) “I didn’t choose someone who has a history of brain cancer in the family. I would never have chosen this donor. They should be ashamed to even have this donor on the website.”

Cryos, the biggest sperm bank worldwide (AFP) (AFP / Getty / Henning Bagger)

There are no national statistics on the number of children born through artificial insemination each year, although some experts have estimated the number may be as high as 60,000. And no one tracks the number of people who find that the sperm they purchased is not from the donor they chose. But in the age of consumer DNA testing, the anecdotes are piling up.

Increasing numbers of parents, or sometimes their donor-conceived children, are discovering that the wrong sperm was provided by a sperm bank or fertility clinic often decades after the fact. The constant trickle of cases is raising tough questions about whether sperm banks and fertility clinics ought to be better regulated.

You don’t know what you’ve inherited – you could stack the deck against your own child unwittingly. It’s not the same as rape. You’re having a medical procedure. But you’re putting this stuff into your body, and I felt physically violated

Melissa, a single mother from Massachusetts

“These stories are extraordinarily heart-wrenching and really challenging for the law,” says Dov Fox, director of the Centre for Health Law Policy and Bioethics at the University of San Diego. “They’re also far more common than we know.

“Sperm banks are very lightly regulated, and these kinds of switches or mix-ups aren’t altogether unforeseeable when you learn of the number of sperm banks using outdated methods of labelling specimens, such as pen and paper,” he explains.

Melissa, a single mother in Massachusetts, discovered that she’d been given the wrong sperm by Repro Lab Inc., a fertility clinic in New York City, when her 21-year-old daughter took a DNA test. She was matched to a half sibling who knew the donor number of the anonymous man. It was not the donor that her mother had chosen at the clinic decades earlier.

“I’d been given the wrong donor, and there’s no way I would have found out unless my daughter took a DNA test,” says Melissa, who asked that her full name be withheld to protect the privacy of her daughter. “You don’t know what you’ve inherited – you could stack the deck against your own child unwittingly,” she continues. “It’s not the same as rape. You’re having a medical procedure. But you’re putting this stuff into your body, and I felt physically violated.”

Awilda Grillo, president of Repro Lab, says that the sperm Melissa was given 25 years ago was not collected by the company but came from a bank in California. “We didn’t package the sample,” Grillo says. “We gave her what she ordered.” Melissa filed a 40-page complaint against Repro Lab with the New York state Department of Health. But the department’s only finding against the lab was poor record keeping. There are few legal remedies for parents who receive the wrong sperm, Melissa learned.

“I wasn’t interested in trying to sue, because I love my daughter,” she says. “Also, I’d have to sue for wrongful birth, and if there is no health issue involved, then there’s no wrongdoing on their part.”

Are they doing what they’re supposed to do? Are they providing the product they promise? These are human beings that they’re dealing with. They may be buying and selling, but this is much more than a car, and it has a huge impact

Law professor Sonia Suter

Jennifer Cramblett of Uniontown, Ohio, filed a suit against Midwest Sperm Bank in 2014, in the Chicago area, after learning that she and her female partner had mistakenly been given sperm from the wrong donor. Indeed, the couple’s child was clearly biracial, although the donor they’d selected was white. Sperm vial numbers at the bank were written in pen and ink, and the facility’s records were not computerised, the suit alleged. But the judge threw out the case, saying it was not a “wrongful birth” because Cramblett’s child had no health problems.

While clients like her may believe that getting the wrong sperm is fraud, courts have long maintained that there is no injury if the child is healthy. “A court could say: ‘You didn’t get the donor you wanted, but how can you say that you’re worse off? How do you know that one donor is better than the other?’” says Sonia Suter, a law professor at George Washington University who specialises in bioethics and health policy.

“There isn’t a legal mechanism here to address what seems to be a clear wrong,” she adds. “The problem is there’s very little regulation. There’s a potential breach of contract if you say you weren’t given the sperm you wanted, but it may be hard to prove.” Suter says that some industry observers believe a separate branch of the Food and Drug Administration should regulate the fertility industry, including sperm banks. “Are they doing what they’re supposed to do?” she asks. “Are they providing the product they promise?” These are human beings that they’re dealing with. They may be buying and selling, but this is much more than a car, and it has a huge impact.”

While the FDA does regulate reproductive tissue (such as sperm and eggs), its authority is limited to preventing the transmission of communicable diseases, such as AIDS and hepatitis. It does not regulate the donor selection process, other than ensuring that basic eligibility requirements relating to health or age are met, says Stephanie Caccomo, a spokeswoman for the agency.

Light regulation of fertility clinics and sperm banks is supposedly to blame for sperm mix-ups (Getty)

Dr Louise P King, an ethicist at the Centre for Bioethics at Harvard University, says that when clinics make mistakes, people who believe they were given the wrong sperm should contact the American Society for Reproductive Medicine or the FDA so that it can be investigated. “They have a duty to find out what led to this and to prevent it from happening in the future,” she says.

Still, the ASRM is a professional organisation that only suggests guidelines for sperm banks, doctors and clinics – and does not regulate them.

Dr Donald Cline pleaded guilty to two felony obstruction of justice charges and admitted that he lied to state investigators about using his own sperm to inseminate patients. He surrendered his medical license and was given a one-year suspended sentence. State prosecutors said they were not able to press for a tougher sentence because there were no state laws prohibiting this conduct.

I can’t believe that someone, let alone a trusted professional doctor who would give off this gleaming persona, would habitually violate that most intimate experience in a woman’s life: having a child

Matt White, son of Cline

Sixty people now believe this former doctor is their biological father, based on DNA testing. Matt White, 36, of Indianapolis, discovered that he was related to Cline after reading a news article about the case. He immediately realised that the clinic was the one his mother had used to become pregnant.

“I can’t believe that someone, let alone a trusted professional doctor, who would give off this gleaming persona, would habitually violate that most intimate experience in a woman’s life: having a child,” he says. White and some of his recently discovered half siblings pushed to make “fertility fraud” a felony in Indiana. The measure was signed into law by the governor last month.

The law covers cases of deception that involve a medical procedure, drug or human reproductive material, such as sperm, eggs or embryos. A conviction is punishable by six months to two and a half years in prison, with a fine of up to £7,800. The law makes Indiana one of the few states to regulate donor conception. In 2016, California passed a law that offers some protections to families having children through assisted reproduction.

But Fox, the law professor, thinks the laws should go further. He has proposed a new concept: “confounded procreation”. Courts would recognise the loss when reproductive choices are confounded, or compromised, by the negligence or wrongdoing of others. In an early test of this concept, the Supreme Court of Singapore in 2017 heard a case involving sperm that was accidentally switched by a fertility clinic, resulting in a couple having a mixed race child.

The court described a new kind of loss – a loss of “genetic affinity” – and awarded the couple 30 per cent of the costs of raising the child, about £182,900. Fox believes that this kind of legal action in US courts can help aggrieved clients fight a litany of actions and inaction committed by clinics – failing to test sperm donors for serious and highly heritable conditions, for example, or neglecting reliable methods to label sperm samples. “There’s a whole constellation of sloppy practices that have resulted in prospective parents getting children who have half of their DNA coming from people that aren’t anything like what they were told,” Fox says.

© New York Times