A wave of new laws in American states banning “fertility fraud” could have important effects upon informed consent in medical practice. With the help of ancestry-testing kits more than 50 US doctors have been exposed, mostly between 1960 and 1990.
Dov Fox, an expert in medical law and bioethics at the University of San Diego, writes in the New England Journal of Medicine, that the danger of doctors using their own sperm to impregnate their patients is largely past. But in 17 states legislation has been passed or is pending which bans the practice and – importantly – does away with the requirement for tangible harm.
Until now, a claim for damages required not only that a doctor failed to disclose medical risk, but also that the patient sustained a tangible injury. The new laws, however, take into account the revulsion that people feel at having been conceived in a fraudulent manner.
All 17 states with fertility-fraud laws or pending bills recognize that such fraud constitutes a breach of informed consent, notwithstanding the absence of physical or demonstrable psychological harm. It has taken more than a century for states to condemn this form of deception, which exploits information asymmetries between doctors and patients, betrays patients’ trust, and denies resulting children meaningful information about their personal identity and medical history.
This opens up new possibilities for lawsuits about procreation:
Fertility fraud isn’t the only practice that has eluded liability under the narrow strictures of informed-consent doctrine: three larger and distinct categories of reproductive misconduct have been neglected. These forms of misconduct leave people without the baby they had tried to have (procreation deprived), with a baby they had tried not to have (procreation imposed), or with a baby who is genetically different in salient ways from the child they had set out to have (procreation confounded).
This refinement of the informed consent requirement could eventually affect areas beyond reproductive medicine, such as actions “that upend interests central to their individual agency, personal identity, or moral dignity.”