Legal Law

After last week’s column, the sperm-swapping doctor is retiring

The victims of the still practicing doctor found to have used his own sperm on his patients have just received big news. After an ongoing legal battle with the Texas Medical Board, the doctor appears to admit defeat. Kim McMorries, MD announced last week that he would be retiring in mid-May 2021.

This is the result of several years of struggle between several very strong and resilient women.

Did the doctor recognize the mistake of his ways?

Probably not, explains Eve Wiley, genetic descendant of McMorries and daughter, one of his victims. Wiley was a vocal advocate for change and successfully led the fertility fraud charges in Texas. Their bill became Texas law in 2019, making it a crime for doctors to use their own sperm (or, albeit unlikely, eggs) to treat their patients’ infertility without their consent. However, the law does not apply retrospectively and therefore does not apply to previous actions by McMorries.

Also in 2019, Professor Jody L. Madeira, an Indiana law professor and an expert on fertility fraud, filed a complaint against McMorries with the Texas Medical Board, which opened a lengthy process that could revoke McMorries’ medical license. Meanwhile, Wiley has spoken out in favor of another bill, which sailed unanimously through a Senate committee in Texas last week, to change the statute of limitations for complaints against doctors. The current complaints against McMorries were embroiled in a dispute over whether they are excluded by a seven-year limitation period for the standard of care of a doctor or whether the complaints about unethical behavior lie outside this limitation period. This problem now appears to have been resolved in favor of the complainants.

McMorries can expect a number of additional complaints. In the past few years, Wiley has found another five half-siblings of McMorrie’s “treatments”. That is in addition to the other four “illegitimate” offspring she already knew and McMorries’ three “social” children (also known as the children he had in his marriage – not through patient insemination).

Wiley believes McMorries saw that there was no way out but to back off.

Was Justice Delivered?

Wiley explains that while there is some satisfaction in seeing the perpetrator in her family no longer practice medicine, justice is not achieved. McMorries has never admitted wrongdoing. Nor has he been charged under criminal or civil law for the harm he caused.

In addition to the doctor’s deceptions, Wiley stated that McMorries told Wiley that he treated a maximum of five patients with his own semen. But when she found out about more and more half-siblings, his number was constantly revised upwards. One of the newly discovered half-sisters was shocked to discover the doctor as her genetic father. Contributing to the disturbing discovery was the fact that McMorries had given birth to two of their children and that the doctor’s son, now what appears to be her half-brother, had operated on her on another occasion.

Other medical donors still at large

Although McMorries will likely still lose his license despite the retirement strategy, there are still a number of perpetrator doctors who have had no ramifications for their additional fertility aid. Like Wiley, Washington State’s Traci Portugal, founder of donordeceived.org, was baffled by the DNA test results she received a few years ago. They showed that her family origins did not come from her beloved late father and extended paternal family; Instead, the results showed that her birth father was actually her parents’ California fertility doctor.

Although California was one of the first states to pass an anti-fertility fraud law, Portugal states that the law contains no teeth and has left little recourse to the doctor who caused her and her family so much pain and trauma . California law provides no cause of action for offspring resulting from fertility fraud.

Portugal failed to file a lawsuit and filed a complaint with the Medical Board of California against their surprise father, Dr. Gary Vandenberg a. She explained how she discovered that Vandenberg had used his sperm on her mother 45 years ago without her mother’s consent. She also stated that when she reached out to Vandenberg, he admitted that he “donated a lot at the time” but that she had “nothing to worry about” in terms of medical history. Left out that his sister actually died of ovarian cancer.

Was the Medical Board of California as outraged as the Texas Medical Board? Apparently not. After the board sent Portugal essentially like a serial letter in response to its complaint, it renewed its medical license.

Maybe they need a law professor to complain?

While it may not be the full justice the victims deserve, hopefully Wiley and other victims will sleep a little better knowing that at least one “donor” doctor is no longer practicing. Even if there is still a lot to be done.

Ellen Trachman is the executive attorney for Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at [email protected].

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