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Fertility Doctors Can Legally Impregnate Patients With Their Sperm — for Now

For state Representative Kerry Tipper, an even greater surprise than learning that Paul B. Jones, a longtime OB/GYN in Grand Junction, had allegedly used his own sperm to impregnate a slew of fertility patients without their knowledge was that doing so is currently legal in Colorado. And she's not alone.

"Everyone's reaction when they find out what he did is shock," says Tipper, a Democrat from Lakewood. "But when they find out it's not a crime, it's even more shock-inducing."

Tipper's response to the Jones case is House Bill 20-1014, titled "Misuse of Human Reproductive Material," which passed the Colorado House on February 3 and has been assigned to the state Senate Judiciary Committee. Co-sponsored by a pair of Republican lawmakers — Representative Janice Rich of Grand Junction and Colorado Springs-based Senator Bob Gardner — her proposal states that "a health-care provider commits misuse of gamete [defined as 'a mature sexual reproductive cell'] if the health-care provider knowingly treats or assists in the treatment of a patient through assisted reproduction by using the health-care provider's own gamete without the patient's informed written consent to treatment using the health-care provider's gamete." If the proposal passes, a violation would constitute a Class 6 felony, marked by a sentencing range of one year to eighteen months in prison and a $1,000 to $100,000 fine.

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The legislation is similar to a measure pushed by Representative Matt Soper that would toughen the penalty for abuse of a corpse. Both bills were inspired by incidents that took place on the Western Slope; Montrose's Sunset Mesa funeral home and body brokerage is accused of secretly chopping up and selling human body parts.  Each proposal seeks to address activities that aren't currently precluded in the Colorado statutes by making them Class 6 felonies, even as angry families are backing lawsuits seeking justice in civil court.

Among the lead plaintiffs in the first complaint against Jones are Cheryl Emmons, a past patient of the doctor, and her two daughters, Maia Emmons-Boring and Tahnee Scott, both of whom were conceived by way of artificial insemination at Jones's clinic. In 2018, Emmons-Boring "did a DNA test to find out her heritage and came out with a whole bunch of half-siblings," Tipper explains. "They got in touch with each other and realized the commonality they had was their moms had gone to the same fertility doctor. And Maia looks a lot like the physician."

Since Emmons and her kids filed against Jones in October, as many as six other families have followed suit. In December, meanwhile, Jones called for the initial case to be dismissed because the statute of limitations had expired; Emmons-Boring was born in 1979, Scott in 1984. The motion also contends that "none of the Spouses nor the Children were ever physically harmed as a result of their alleged ancestral findings."

There's definitely a resemblance between Paul B. Jones and Maia Emmons-Boring, who learned about her biological connection to the doctor online.
There's definitely a resemblance between Paul B. Jones and Maia Emmons-Boring, who learned about her biological connection to the doctor online.

Emmons-Boring and her mother, who testified on behalf of the bill during a January 28 committee hearing, beg to differ, and Tipper understands why. "It wasn't like this doctor was donating to a sperm bank. He was going into a room next to where Maia's mom's room was and masturbating, producing a fresh sample, then coming in and inseminating her with that fresh sample — and she had no idea. She's said if she'd known it was his sperm, there's no way she would have gone through with that."

As for Emmons-Boring, Tipper notes that "when I met Maia, I was blown away listening to her talk about the pain and the shame and the really complicated feelings she has. It really spoke to the severity of this breach of trust."

Still, figuring out how to deal with the situation legislatively wasn't easy. Tipper began laying the groundwork for the bill last summer, and early on, she reveals, "there was a big push to make this a sexual assault. But a sexual assault requires that a prosecutor prove a specific intent based on the motivation of sexual gratification, and in some cases, it's not necessarily clear that was the motivation. So I felt we needed to create a new crime."

This decision raised the prospect of a potential conflict with the Colorado Criminal Defense Bar, which routinely opposes such efforts under the general theory that there are already more than enough laws on the books. But after discussions with Tipper, the CCDB agreed to remain neutral on the bill, just as it did for Soper's abuse-of-a-corpse offering.

Although the law would seem unlikely to get much use, Tipper argues that "as a percentage of cases, it's very small — but it's not an outlier. There may have been dozens of cases in the U.S. of something like this happening, and people are finding out about them because of ancestry websites." Indeed, a May 2019 article by The Atlantic documents the passage of a new law in Indianapolis prompted by just such a scenario, and notes similar examples in Texas and Virginia, as well as ongoing lawsuits in Idaho, Vermont and California (plus Canada and the Netherlands).

As the bill heads to the state Senate, Tipper is optimistic about its chances: "This is bipartisan, and I think everyone can understand why people like Maia feel the way they feel, which is not only that they've been violated and had their whole lives upended, but that there's no consequences for the person responsible. And even though this wouldn't change anything for her family, they don't want anyone else to go through what they have."

The Senate Judiciary Committee hearing on Tipper's bill is slated for February 26. Click to read Cheryl Emmons, et al., v. Paul B. Jones, et al. and House Bill 20-1014.

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