Spokane doctor used his own sperm in fertility care, lawsuit alleges

Nearly 35 years ago, an Idaho woman sought fertility treatment from a Spokane doctor, hoping to conceive her second baby through artificial insemination. On Thursday, she filed a lawsuit against the now-retired OB-GYN, alleging that he secretly used his own sperm to impregnate her.

Sharon Hayes’ lawsuit, filed Thursday in Spokane County Superior Court, calls out a practice that has gained attention in the last several years as a growing number of people have discovered their genetic history is not what they thought. But in Washington state, and in most of the country, there are no laws specifically banning doctors from secretly using their own sperm during artificial insemination procedures.

A state bill to create a criminal charge around the practice, among other regulatory measures, has died in the past four legislative sessions.

The lawsuit instead claims Dr. David R. Claypool violated the state’s medical malpractice statute, which requires doctors to get informed consent from patients for treatment, as well as the Consumer Protection Act. It ultimately seeks financial damages, to be set at a later date.

Reached by phone Wednesday afternoon, Claypool said he had no knowledge of the lawsuit or allegations, and denied knowing Hayes.

“I know people are very happy,” Claypool said of his past patients. “But this is the first I’ve heard of anything in 40 years.”

Claypool said he was an independent OB-GYN who stopped practicing in 2005. Drew Dalton, Claypool’s attorney, declined to comment Wednesday except to note, “The matter is still in mediation as far as I am aware.”

Hayes believes she’s the first to take a Washington doctor to court over the issue.

“He just needs to be held accountable,” Hayes said.

Help for a second child

Hayes, now 67 and still living in Hauser, Idaho, went to see Claypool in 1989, according to the lawsuit.

Her first child, Darci, was conceived through artificial insemination in Seattle, but 10 years later, Hayes wanted a closer provider. A friend recommended Spokane-based Claypool.

Hayes thought she knew what to expect.

Hayes starting feeling uneasy around him early on for reasons that were “hard to pinpoint,” she said in an interview. But she pushed through her doubts, telling herself she just wasn’t used to the new doctor.

She said she saw Claypool for about six months and received treatment a handful of times before she became pregnant.

Part of that process included selecting an anonymous donor based on physical features, health and genetic qualities. The donor would be chosen from a pool of college students who physically resembled Hayes’ then-husband, Hayes said Claypool told her.

Each time, she gave Claypool $100 in cash for the sperm – on top of what insurance billed, she said. The doctor told her it was “how college kids made their money.”

Her second daughter, Brianna, was born in June 1990.

Similar stories proliferate

In the U.S., about 10% of women ages 15 to 44 said they received some form of fertility service between 2017 and 2019, according to a recent Pew Research Center study. Services include artificial insemination, which involves samples that can be frozen in banks and often come with extensive information about the donor.

But in the 1970s and 1980s, freezing sperm was uncommon and fresh samples were needed for the procedure. There was also more of a stigma about the process, Hayes said.

Since then, a disturbing number of stories similar to Hayes’ allegations have emerged throughout the country.

Donor Deceived, one website started by Woodinville resident Traci Portugal that tracks these cases, has counted at least 39 doctors in the U.S., spanning nearly 350 cases. A New York Times story last year cited more than 50 U.S. fertility doctors who have been accused of fraud related to donating sperm.

A Netflix documentary told the story last year of an Indiana fertility specialist who fathered at least 94 children by using his own sperm to inseminate unknowing patients.

The practice is called “fertility fraud” by advocates and lawmakers.

Estimates report about 5% of the U.S. population experiences “misinterpreted parentage,” Portugal said, referring to anyone who at some point is surprised to learn they are not genetically related to the parent who raised them.

Many of these cases are revealed only because of ancestry-tracing websites, such as Ancestry.com and 23andMe, which use at-home DNA sampling kits and then upload the results to a database. Users can find relatives and family history based on how many other people have uploaded their genetic sequences to the site.

This is how Brianna Hayes discovered Claypool.

Search for answers reveals surprises

Last year, Brianna Hayes, now 33, started searching through genetic records, she said, to find answers to ongoing health issues she’d been facing.

She was diagnosed with leukemia at age 4.

In high school, after she recovered, she was diagnosed with Epstein-Barr virus, which can cause up to months of fatigue and fevers.

“I almost didn’t graduate, I was so ill,” she said.

Sharon Hayes worried she didn’t know her daughter’s full medical history – it was intentionally anonymous – and fleetingly thought her old doctor might have donor details. But she couldn’t find Claypool’s contact information, she said, and after Brianna finished Leukemia treatment, Claypool faded from mind.

As an adult, Brianna Hayes said she has had five hip surgeries, which forced her to relearn how to walk through on-and-off physical therapy. She’s also been diagnosed with a sleep disorder, which impacts her daily activities.

“I was trying to see what my predispositions are for further issues,” Brianna Hayes said. “What could be in my genetics? I was just trying to be informed.”

She said she uploaded some DNA test results to 23ndMe and MyHeritage, both online genealogy databases, and was stunned to see she had several half-siblings around the Spokane area.

Soon after, the group of half-siblings realized Claypool had a profile on one of the sites. All their DNA results matched his.

“I went through an identity crisis,” Brianna Hayes said. “It’s ongoing. I’ve had to come to terms with the idea that someone committed this act against my mom. And that I’m a product of it.”

Problem ‘will grow’

The world of assisted reproduction – which also includes in vitro fertilization – is largely unregulated in the U.S., said Kara Rubinstein Deyerin, a Seattle expert on the topic who discovered her own genetic surprise years ago.

In 2002, days before her 44th birthday, genetic testing revealed she was not biracial and that she shared no DNA with her Black father, as she grew up believing. Instead, her biological father was the late Seattle businessman Sam Rubinstein.

“This is a huge issue,” Rubinstein Deyerin said. “And it will continue to grow as more people use assisted reproduction techniques.”

The lack of requirements mean sperm banks don’t have to genetically test donor material and there are no real limits on how many times a certain donor’s sample is used, for example, Rubinstein Deyerin said.

Rubinstein Deyerin co-founded nonprofit Right to Know four years ago, which pushes for widespread federal and state legislation, including in Washington. She also points to resources like Donor Conceived Community and the National Association of Adoptees and Parents.

To date, at least 11 states have enacted laws around instances in which doctors use their own sperm.

But because the practice is generally believed to be less common now, Right to Know tends to focus its advocacy on more “broad-based bills” that encompass any fraud in assisted reproduction.

In Washington, a bill that would criminalize such fraud has died in session the past four years. In the past, legislation has pushed to classify the act as a class C felony with a third-degree assault charge.

Beyond trying to “make it a crime for donors lying,” Rubinstein Deyerin said, it also includes other types of cases like scenarios when samples are used for something other than what the donor understood and for anything other than what the patient requested.

She and others are already planning to reintroduce the legislation next year.

“I couldn’t believe it,” Sharon Hayes said she remembers thinking after her daughter called her with DNA test results last year.

“I was sick. I felt like a science experiment.”

She hasn’t talked to Claypool since 1989, but her family has met with his lawyer for a mediation session to retrieve some insurance information and other documents, said RJ Ermola, Hayes’ attorney. The parties “were not able to resolve the matter through mediation,” he said.

Hayes has spent the last year working through her shock. The stress once put her in the ER.

“I wasn’t myself because all I did was sit around and cry and sleep all day,” she said.

She still sometimes feels guilt and shame from the experience. So does Brianna Hayes, who has moments of regret about taking the DNA test.

“This has rocked our world,” Brianna Hayes said.

Both Hayes’ daughters have since moved back home to Idaho.

Brianna Hayes has tried to find silver linings in the genetic discovery – like what feels like a treasure trove of half-siblings around Eastern Washington, a couple of whom she’s met in person and who are “all tremendous people.”

But she also left a job she loved in Albuquerque, N.M. The whole experience triggered an end to her engagement. And she and her family still feel traumatized.

“I’m supporting my mom,” Brianna Hayes said. “I’m advocating for her peace and her justice.”