Legislation to impose criminal charges on doctors who artificially inseminate patients with their own sperm moves one step closer to Washington law

Doctors who implant their own sperm in a patient seeking fertility treatment could face criminal charges thanks to legislation approved by the state Senate on Tuesday.

The advancement of the bill is a promising step for Brianna Hayes, who says her biological father is the Spokane doctor who – without informing her parents – allegedly used his own sperm when artificially inseminating her mother.

If the proposal had been in place when her mom was treated, the doctor could have been charged with third-degree assault and faced jail time.

As a survivor of childhood cancer, and diagnosed with Epstein-Barr virus, developmental hip dysplasia and a variety of other medical conditions, the North Idaho native was curious to find out if her genetic makeup had anything to do with her health struggles.

In 2020, Hayes turned to 23andMe, a genetic testing site that scans for health predispositions and connects people to their ancestry.

What she found were three half-siblings. She also discovered that she had been conceived through artificial insemination in 1989.

“I was 30 years old when I found out all of this information, so this was completely shocking to me. And so, I was just trying to wrap my head around that idea,” Hayes said.

Two years later, she used her DNA once more to delve deeper into her family history.

“It broke away from everything I’d ever known my whole life, and then, when I uploaded my information to the second DNA site, MyHeritage, that was when it was connected to Dr. Claypool,” she said.

When Hayes’s mother, Sharon Hayes, and her father needed help getting pregnant, the North Idaho residents crossed state lines to seek out the now-retired Spokane obstetrician-gynecologist David Claypool to pick a sperm donor.

They chose a donor with similar characteristics to her father “so that way families could have a profile that matched the father who would be raising the child,” Hayes said, including the same eye color, height, race and hair color. The chosen donor was also screened for possible genetic medical conditions.

“At no point was the agreement that Dr. Claypool would be the donor,” she said.

Sharon is suing Claypool for medical negligence and medical battery. Filed in Spokane County Superior Court in October, the lawsuit alleges Claypool knowingly used his own sperm to artificially inseminate Sharon without her consent and also charged her $100 on top of her billed insurance that he claimed was going to “third party sperm donations,” which violates the Consumer Protection Act.

Washington’s fertility laws are ‘bare bones’

Lawmakers have been trying for multiple years to pass legislation concerning fertility fraud, and this year’s bill has finally made it through the Legislature, having unanimously passed the House earlier this month and Senate on Tuesday. Because of changes made in the Senate, the bill needs another approval by the House before heading to Gov. Jay Inslee’s desk for final approval.

The bill classifies it as assault in the third degree for any licensed health care professional to implant their own gametes or reproductive material into a patient during assisted reproduction, or to have someone else do so on their behalf. Third-degree assault is a class C felony punishable by a maximum of five years in prison and/or up to $10,000 in fines.

The Legislature also expanded the state’s Uniform Disciplinary Act, so any licensee found to have implanted their own genetic material in a patient could face disciplinary action and license revocation.

“These cases are really a terrible breach of trust and simply should be illegal,” said Sen. Derek Stanford, D-Bothell, who’s been working to pass legislation relating to fertility fraud and assisted reproduction. “And with this bill, it finally will be.”

Before, Washington’s laws pertaining to doctors who secretly use their own reproductive material during artificial insemination were “bare bones,” Hayes said, meaning there were none. Some lawmakers also claimed this practice doesn’t happen anymore.

“Unless you’re actually living it, or you’re hearing the experiences of people who have been affected by this, I think it has been difficult for lawmakers to act on it,” she said.

Claypool isn’t the only doctor whose actions have come to light in recent years. With the rise of and modernization of DNA testing, numerous Washington patients have come forward alleging their doctors used their own sperm for artificial insemination without the patient’s knowledge or consent. Among those accused are a former University of Washington Medicine physician and a Woodinville fertility doctor.

So far, nearly 350 cases of fertility fraud have been tracked nationally, and more than 700 cases have been tracked internationally, according to Donor Deceived, started by Woodinville resident Traci Portugal.

Hayes’ goal is to see this year’s legislation signed into law so people like herself and her mother are protected, and so doctors are held to a higher standard.

Ultimately, she wants to hold Claypool and others like him accountable.

The bill will become law if it gets final approval from the House and is signed by Gov. Jay Inslee.