An opportunity to criminalize so-called "fertility fraud" is underway, spearheaded by Representative Stephanie Bice, R-Oklahoma. This month, she introduced H.R. 451, the Protecting Families from Fertility Fraud Act.
Congresswoman Bice said the bill was inspired by the Netflix documentary Our Father and doctor sperm donor cases similar to the one NBC Bay Area’s Investigative Unit uncovered in San Leandro.
“I think it’s good. These doctors need to be held accountable for what they did,” said Marlena Velasquez.
NBC Bay Area’s Investigative Unit has been following Velasquez’s journey for more than six months after she revealed she took an Ancestry DNA test and found out her biological father is not the man who raised her but her mother’s San Leandro OB-GYN.
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The Investigative Unit tracked down the now-retired physician. He told us over the phone he used his own sperm in Velasquez’s mother’s artificial insemination procedure at Vesper Memorial Hospital, which no longer exists. He said he used his own sperm when the scheduled sperm donor did not show up. He said he did not tell her parents, and now, more than 40 years later, he regrets it.
NBC Bay Area found the doctor did this at least two other times, including to conceive Velasquez’s sister.
“I think that’s absurd,” Congresswoman Bice said. “If the physician truly wanted to help his patients and was adhering to the Hippocratic Oath that he takes, he would have asked the family, the woman who was trying to conceive if it was okay to use his DNA rather than the donor who he said did not show up.”
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Bice said she believes the doctor in the San Leandro case should be prosecuted.
“I do not buy the argument that this individual, this doctor, was trying to help his patient. If he was wanting to help the patient, he would have been honest and upfront,” Bice said. “Maybe the more egregious part was that there was no recourse.”
That lack of recourse has more-than frustrated Velasquez.
“I honestly wish I didn’t know. I wish I could go back and not do the DNA test. And I regret ever finding out because all it did was make [me] mad,” she said.
Congresswoman Bice says there are currently only 11 states that have some sort of statue on the books for prosecutors to go after fertility fraud criminally.
California has PC 367(g), which makes it a crime for anyone to implant sperm, ova or embryos through assisted reproduction without consent from the recipient. However, the statute of limitations is three years from the act. Most fertility fraud victims, especially the children, do not find out until decades after through DNA testing.
“One of the most important pieces of [this bill is it] allows for the statute of limitations to begin once the victim realizes they that they have been a victim of fertility fraud,” said Congresswoman Bice.
H.R. 451 would also codify fertility fraud as a federal sexual abuse crime with a maximum imprisonment of 10 years, and it would allow judges to order restitution for victims.
If the bill is signed into law, it would not be retroactive for criminal prosecution, so it wouldn’t directly impact Velasquez in that sense. But it might help someone in the future.
“If anything comes of what I did, I hope a law like this comes into effect. It’ll make what I did somewhat worth it,” Velasquez said.
Congresswoman Bice says H.R. 451 has bipartisan support and she hopes to get the bill through chambers and on the President’s desk this Congress.
Catch up on NBC Bay Area’s investigative series Fertility Deception:
Part 1: San Leandro-Born Woman Takes DNA Test, Finds Out Father is Mom’s Fertility Doctor
Part 2: Doctor Sperm Donor Cases Uncovered Nationwide, Little Recourse for Children
