When Bryce Cleary was a first-year medical student who donated sperm to his school's fertility clinic in 1989, internet genealogy sites and mail-in DNA tests didn't exist.
Now they do, of course, and so there are tools to not only identify paternity but to show whether donor sperm from long ago was misused.
In the case of Cleary, who is now a primary-care physician in a small Oregon town, that is precisely what happened. In May 2018, he heard from two young women who had used the genealogy website Ancestry.com and discovered that they were biological sisters and he was their biological father.
After they contacted him, he did his own search on Ancestry.com via submission of a DNA sample and discovered the true extent of his fatherhood via donated sperm: Seventeen people.
This was a shocking discovery for Dr. Cleary because he recalled that the fertility clinicians at Oregon Health and Science University had told him back in 1989 that no more than five children would be conceived by his sperm. Furthermore, they assured him that the conceptions would be limited to mothers on the East Coast — but nearly all of his progeny on Ancestry.com had been conceived and born in Oregon, and some had attended the same schools as the four children he and his wife had raised.
He responded with a recently filed lawsuit, seeking $5.25 million in damages from the clinic for the allegedly mishandling his sperm. In his complaint, Cleary said that the developments have taken an "emotional, mental, and physical toll" on him and his family.
If the Cleary case sounds familiar, there's good reason:
People who seek to sue clinics and doctors, however, face an uphill battle.
Idaho U.S. District Court Judge David C. Nye explained why in a 2018 dismissal of a suit against a fertility clinic and Dr. Gerald E. Mortimer, who did not disclose that he used his own sperm to inseminate a woman.
"There can be little argument that Mortimer's alleged conduct in using his own sperm to artificially inseminate Ashby without her knowledge is morally repugnant, ethically questionable, and demeaning to Ashby," Judge Nye wrote. "The Court does not take lightly allegations that a physician so grossly abused his position of trust, particularly when those actions are related to the important right of procreation. However, the issue here is whether Plaintiffs can legally recover under tort law for Mortimer's conduct."
The problem for plaintiffs is that while courts might recognize that doctors are behaving poorly, the absence of physical injury or property loss makes it difficult for them.