Washington lawmakers say there was a lack of interest in fertility fraud laws. Then a woman sued her Spokane OBGYN for involuntarily inseminating her

Nov. 10—If there was a law against doctors using their own sperm to inseminate their fertility patients, 33-year-old Brianna Hayes said it's possible she might have lived a different life.

Hayes was diagnosed with leukemia when she was 4 years old. Then Epstein-Barr virus. Then hip dysplasia.

In total, she said, she went through five hip surgeries and had to learn how to walk again — twice — as an adult. Hayes started searching on genetic websites, thinking if she could trace her ancestry she could find more answers about her medical heritage by uploading her DNA. Instead, she said she discovered she was conceived through artificial insemination in 1989 by her mother's doctor, now retired Spokane-based obstetrician gynecologist, David Claypool.

Hayes and her mother, Sharon, both live in Hauser, Idaho. But in 1989, Sharon Hayes, who discovered she could not have a child with her then-husband, went across the state border to Claypool in order to pick a sperm donor.

When Brianna Hayes was researching her ancestry last year, she discovered she had multiple other half-siblings in the area all related to Claypool. She brought it up.

"Do you know a David Claypool?" she remembers asking her mother. "She goes, 'Yeah.' And I said, 'He matched as my father.' Her first response was that it can't be right."

Sharon Hayes is suing Claypool 33 years later for medical negligence and medical battery. The lawsuit, filed in Spokane County Court, alleges Claypool knowingly used his own sperm without consent and made misleading or misrepresenting statements to Sharon Hayes, resulting in violations of the Consumer Protection Act.

The most disturbing part, Brianna Hayes said, is that Claypool assured her mother the donor would be screened for health issues. While it's unclear if genetics led to her medical problems, none of her health issues run on her mother's side.

A family member of Claypool, who did not give her name, said they were advised not to comment when reached by phone. Claypool has not yet responded to the lawsuit as of Wednesday.

This isn't the first time Claypool has been sued. According to court documents, he was sued in 1985 when a woman accused him of perforating her bladder and unnecessarily removing a portion of her fallopian tube. That same year, he was sued by a couple who lost their twins in-utero. They said Claypool never warned them about complications from the woman's loss of amniotic fluid after leaving the hospital. In 1991, he was sued again for allegedly leaving a sponge in a woman's abdomen during surgery and then closing her back up. Both parties ended up reaching settlements on the three lawsuits, but its unclear what the agreements were.

Washington lawmakers didn't seem interested in anti-fertility fraud

Brianna Hayes said her mother only consented to the donor that matched the characteristics the family wanted at the time, not Claypool. And having a law that doesn't protect patients from this, she said, is "disheartening."

"Patients don't have that type of protection or even have laws to back them up in these situations... If there's no law, there's nothing to abide by," she said.

Some Washington lawmakers have been trying for years to get a fertility fraud law passed, which would have possible legal and criminal punishments if a doctor lied about the genetic makeup of the specimen their patient is using for assisted reproduction. In the Washington Legislature's 2021-2022 session, House lawmakers tried to get HB 1848 passed, which made the fraud a class C felony. It never made it to the House floor.

In this year's session, House lawmakers introduced HB 1300. If a medical professional used their own gametes to inseminate their patient, they'd be guilty of third-degree assault. That bill currently sits in the House Rules Committee, waiting to be taken up when legislators come back to finish their session in 2024.

One state senator, Derek Stanford, said there has to be more interest in fertility fraud laws in order for them to pass.

"When I worked on it originally... I felt like the response was people saying, 'Well, I don't think that really happens these days,' or that it doesn't happen here," Stanford said.

Stanford sponsored a senate bill, which would have made false representation in assisted reproduction a felony — meaning, the provider or clinic knowingly uses or provides reproductive material other than the material they agreed to use for the patient. Not everyone was thrilled about the criminal element of the bill, Stanford said, so it was excluded in a substitute bill.

"The criminal sanctions are more difficult because that is generally something that gets more scrutiny. If we are creating new crimes, it gets scrutiny," Stanford said. "Rightly so."

The bill's co-sponsor, state Sen. Manka Dhingra, said it's not that people think an anti-fertility fraud bill is a bad idea — it just doesn't get attention to rise to the top. And in some ways, she said, assisted reproduction is a "hot topic."

"Many times, people feel like when you open that area for lawmaking, it's a slippery slope or can result in unattended consequences," Dhingra said. People go back and forth on how to classify fertility fraud — some advocates for the law thought it should be listed as rape, she said, and some thought assault.

Either way, Dhingra said, "It's a huge violation to be deceived."

Once the substitutes on the bill were completed in the Senate Law and Justice Committee, the bill would have only forced a provider to lose their medical license. But on Feb. 17, 2022, that bill died when it wasn't taken up on the Senate's second reading calendar, even though it had bipartisan support.

Overreach or right to know?

Some who liked the original bill intended to vote against the substitute bill because it wasn't harsh enough, such as Sen. Mike Padden, who represents Spokane Valley. He said in committee last year that the most important part of the bill was missing, and did not recommend passing it. Others who thought the original bill was too harsh voted for the substitute bill, including Sen. Jamie Pedersen, who represents District 43 in Seattle.

Pedersen said he doesn't disagree that a doctor should lose their license for misleading a patient about their assisted reproduction, but "some things are a ridiculous overreach."

He also said instances of doctors inseminating their own patients is a thing of the past, because technology is too advanced these days. No one disagrees about the kind of abuses that were happening in the '80s with IVF, he said, but "that isn't happening" anymore.

"When you start talking about criminal penalties for people who misrepresent the gametes, that's an overreach," Pedersen said. "No question that in the modern world, a doctor who was proven to have done that would lose his license."

Kara Rubinstein Deyerin, co-founder and advocate with fertility rights group "Right to Know," said although doctors inseminating their own patients might not happen anymore, children from the '80s and '90s are growing up and discovering shocking things about their genetic history. She said children conceived by artificial insemination have a right to learn about their medical history, and that can be thwarted if the parent is lied to about the donor material.

"The idea is we don't need fraud legislation because its not that broad of an issue, but there's also no data," Deyerin said. "The only way you find out is way after the fact, when a child is an adult."

Pedersen said Washington already has certain regulations around assisted reproduction. The Uniform Parentage Act, passed in 2017, requires fertility clinics or gamete banks to "make a good faith effort" to provide the child conceived by assisted reproduction the identifying information and medical history of the donor.

"With this and genetic testing, there's really no such thing as an anonymous donation anymore," Pedersen said.

Pedersen also said he has more concerns with criminal penalties upon donors or medical professionals — and it lies within rhetoric of the anti-LGBTQ+ community. He said he has frequently heard from both GOP supporters in Boston and LGBTQ+ groups in San Francisco that right-wing groups tend to advocate for narrow laws around fertility because they believe LGBTQ+ people should not be having children.

And, he said, the regulations would have more of an effect on LGBTQ+ couples who want children through assisted reproduction.

"It could limit ability of certain clinics or increase prices. If you think you're going to be potentially liable for a misrepresentation about your personal qualifications as a donor, or if your clinic could be held liable because you fail to screen a donor... All of those things have the effect of increasing costs, and this is already a process that is expensive," Pedersen said, adding it's possible fewer people would end up donating. "It all has the effect of pushing assisted reproduction further out of reach."

The future of fertility fraud legislation

Just last year, Iowa made it a criminal act for doctors to use their own sperm to impregnate their patients. Deyerin helped write the bill.

For her, broad-based legislation is more effective — and that means even if a doctor isn't inseminating patients with their own sperm, doctors and fertility clinics should still be held accountable for their lack of honesty.

"The biggest fraud we see is lying at different points in the assisted reproduction process," Deyerin said. "When the donor provides the specimen, there's no requirement of people to verify if they have a Ph.D. or are 6-foot-5."

The lack of Washington's laws surrounding the issue is even more disappointing for Deyerin, who resides in Washington and discovered in 2018 the man on her birth certificate wasn't her biological father. And most of her battles include trying to show lawmakers that fertility fraud happens more often than they think it does.

"That's what we are up against in the Washington Legislature," Deyerin said. "There are no consequences."

Deyerin also said part of the problem is tracking down old records for children conceived by assisted reproduction. There's a running joke in her line of work, she said, that when you call and ask for fertility records, they tend to be destroyed in some type of fire or flood.

"Are there really that many fires or floods?" Deyerin said.

Brianna Hayes' attorney, RJ Ermola, said when he went searching for Claypool's records, including insurance and background information that may have helped the Hayes family, he was told all the records from his practice were destroyed.

"We were looking for any crumbs we could," Ermola said.

Because there is no criminal law on the books, Ermola said, the best way to legally describe Sharon Hayes' situation would be "medical battery." Every time someone goes in for a medical procedure, that is considered a type of battery because a medical professional is operating on someone's body.

"Medical malpractice statute sets forth that informed consent is one of those things if it's not done properly, that's medical malpractice because it always is battery. There was a battery, but the distinction is the informed consent of that battery," he said. "There's no criminal statute to say that because you go in for medical procedure, you're consenting to a battery. That's not criminal until the Legislature changes."

Stanford said he's currently deciding if he wants to push more fertility fraud bills in the next session. Dhingra said she will be calling on others to take another look at the issue.

"Our laws should be up to speed," Stanford said. "Part of the issue is there is a sense that we don't want to send a message there's something wrong with the kids who are conceived through this under false pretense... There is nothing wrong with them as people. But I think we should stand up for their rights and ability to address the harms that have been done."

For now, Brianna Hayes is focused on supporting her mother, she said. It caused stress in their relationship, in their family and changed their lives. And it changed how she views doctors.

"It has been very difficult. When I thought about it, it made me feel appreciation for my mom as well. It made me realize that I was deeply wanted," Brianna Hayes said. "For my mom to go through what she went through... And then to realize that she put trust in her doctor, only to feel violated... She felt violated by a medical professional. We are supposed to trust medical professionals."