Lawsuit alleging doctor’s sperm donation heads to court

BOISE – A judge will hear arguments later this month in a lawsuit by a woman who accuses a fertility doctor of fraudulently using his own sperm to artificially inseminate her mother.

Dr. Gerald Mortimer and his former medical practice asked for the lawsuit to be dismissed, and U.S. District Judge David Nye is scheduled to hear arguments Thursday in Pocatello.

Kelli Rowlette and her parents, Sally Ashby and Howard Fowler, sued Mortimer earlier this year, contending the doctor committed medical malpractice, breach of contract and fraud when he carried out the artificial insemination procedures on Ashby over several months in 1980.

Ashby and Fowler say the doctor told them he’d use a mixture of Fowler’s sperm and donor sperm from an anonymous college student who looked like Fowler. The doctor contends he doesn’t remember which sperm he used but that he was only required to use sperm from a “suitable donor,” not a specific person.

Rowlette discovered the situation when she took a DNA test and the company notified her that her mother’s former doctor was a likely parental match. Her parents say they wouldn’t have agreed to the insemination procedure if they had known Mortimer was going to use his own semen.

Mortimer filed a motion earlier this summer to dismiss the lawsuit, contending in part that Rowlette and her family waited too long to sue.

Rowlette’s arguments amount to a “wrongful life” claim – a type of argument that has repeatedly been rejected by Idaho courts, Mortimer’s attorneys wrote. They also said Fowler didn’t have standing to sue because he wasn’t the doctor’s patient – only Ashby was.

Attorneys for Obstetrics and Gynecology Associates of Idaho Falls, where Mortimer used to work, argued in court documents filed Wednesday that Rowlette can’t sue over conduct that happened before she was conceived.