The story has become an all too familiar one. In the 1970s or 1980s, hopeful couple seeks help conceiving from their doctor. The doctor promises to use donor sperm to help with conception, often promising that the sperm source would be from a medical student. A baby is born. Then years later, in modern times, a DNA test, now popular holiday gifts, reveals that the doctor didn’t exactly use a medical student’s DNA, but used his own sperm to impregnate his patient. #Yuck
The Case. Such was the case of Cheryl and Peter Rousseau. Their complaint, filed in 2018 in the United States District Court for the District of Vermont, tells a similar story. Both had children from prior marriages, but they wished to have a child together. Peter Rousseau had undergone a vasectomy and learned that it could not be reversed. The couple sought assistance from Dr. John Boyd Coates III. The doctor agreed to help them conceive with the use of donor sperm from “an unnamed medical student who resembled Plaintiff Peter Rousseau, who met specific characteristics that Plaintiff Cheryl Rousseau required and who had been tested for purposes of being a donor genetic material for use in donor insemination.”
Did the good doctor use sperm from such a donor? Yeah, no. Not even close. He went ahead and secretly used his own sperm.
Interestingly, Coates required that Peter Rousseau retain an attorney to draw up a contract to confirm that he (Rousseau) would adopt any child born from the donation procedure. Which Rousseau did. Cheryl Rousseau underwent testing required by Coates and then, in March 1977, an insemination procedure. In December 1977, Cheryl Rousseau gave birth to a daughter, personally delivered by Coates.
Over 40 years later, in 2018, the daughter used DNA testing to learn more about her biological father. She uncovered the truth — that Coates himself was her father — revealing the doctor’s gross misconduct.
The Claims. Cheryl and Peter Rousseau filed suit against the doctor for medical negligence, failure to obtain informed consent, fraud, battery, negligent inflection of emotional distress, intentional inflection of emotional distress, breach of contract, and a Consumer Protection Act violation, as well as against the medical facility for negligent supervision.
The Verdict. It took over three years of litigation to reach a jury verdict, but on March 30, 2022, a jury found that Coates failed to obtain informed consent, was liable for fraud, committed battery, and breached a contract that he had formed with Cheryl Rousseau. The jury awarded Cheryl Rousseau $250,000 in compensatory damages, which might not seem like enough for such gross misconduct. But don’t get too down. The jury also awarded $5,000,000 in punitive damages.
This is a very big deal. Before this verdict, victim after victim of “doctor-donors”(a popular shorthand for doctors who used their own sperm on their patients without the patients’ knowledge) have been denied relief when attempting to bring their perpetrator to justice. Professor Jody L. Madeira, a legal expert in fertility fraud, explains, “The jury verdict in Rousseau v. Coates is the first ever fraud verdict. Its magnitude demonstrates the public outrage that these cases can generate, and demonstrates that ordinary citizens — those that comprise a jury — recognize the heinous violation and trauma that this conduct generates.” Although money cannot change what happened, and cannot provide closure, it can help to hold John Boyd Coates accountable, together with physicians like him.
I also checked in with one of the most powerful voices for victims of fertility fraud, Eve Wiley. You may recall her story of discovering her mother’s doctor was her genetic father. Unlike Coates, who now faces serious monetary consequences for his actions, Wiley’s doctor-donor Dr. Kim McMorries (whose fight with the Texas medical board I had written on frequently) has not been found civilly or criminally liable for his actions, and continued to practice medicine until just last May.
Wiley sees this verdict as “a huge win for the fertility fraud, fertility negligence, and women’s reproductive rights’ movements.” She believes it sends a strong message to doctors and professional organizations that there will be accountability, and highlights the need for more regulations to prevent fraud and negligence. The message, she says, is that predatory doctors have been able to hide behind anonymity and loose regulations for far too long. This jury verdict paves the way to hold them accountable.
Moreover, Wiley explains that this verdict sends a message to victims, empowering them to come forward for justice in a previous legal landscape that largely only offered nondisclosures and settlements in exchange for silence. “My hope is that as more of these cases see the light of day it will give transparency into the grossly unregulated fertility industry, peace to the victims, and a safer path forward for assisted reproductive technologies.”
Time will tell how much the jury’s verdict will reverberate in other cases across the country and the globe. But for now, we know that this … is …. big.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at firstname.lastname@example.org.