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Senate Panel OKs 'Fertility Fraud' Measure in Arizona


By Howard Fischer
Capitol Media Services

PHOENIX -- Doctors who use their own sperm to impregnate women without their consent could soon face new civil liability in Arizona.

Without dissent the Senate Judiciary Committee agreed Thursday to create a new right to sue for "fertility fraud.''
In essence, it would spell out in statute that a woman who gives birth to a child could seek damages if she was impregnated by the doctor's own sperm rather than what she requested. A similar and separate right to sue also would exist for the spouse of the woman as well as each child born from the action.

And it would allow such lawsuits up to a decade after a child's 18th birthday.

There is nothing specifically precluding such lawsuits. In fact, Kristen Finlayson who testified on Thursday has litigation pending in Pima County Superior Court against a man who, at the time, was a Tucson doctor.
SB 1237, however, would create a specific cause of action with specific relief, spelling out not just the additional time to file these claims but that anyone found liable can be forced to pay compensatory and punitive damages or, at the very least $10,000.
Finlayson has detailed for reporters how, at age 34, she took one of those ancestry tests. That turned up the fact that she had no biological link to her father.
But it wasn't the fact that her mom had undergone artificial insemination that was an issue. It was the fact that it turned out that her biological father was this fertility doctor from Tucson.
"My mom and dad were desperate to have kids,'' Finlayson told lawmakers. And she said how her mother specifically wanted a Hispanic donor.
"He decided to take it upon himself and inject his own sperm,'' she said, and even saw her mother throughout her pregnancy and delivered her and her brother who, as it turned out, also was fathered by the same doctor.
"This is sexual assault,'' Finlayson said. "This is rape. It needs to be criminalized.''
This bill, however, doesn't go that far.
The original version of SB 1237 crafted by Sen. Nancy Barto, R-Phoenix, also would have made such actions a felony, as it is in Texas, California and Indiana.
But Sen. Warren Petersen, R-Gilbert, who chairs the panel, had the bill altered to remove that language.  
He told Capitol Media Services that creating a new crime would have been too great a first step for Arizona.
"I believe the civil will serve as a sufficient deterrent,'' Petersen said.
Others, however, suggested that the issue should be addressed.
"It's really just horrifying and outrageous conduct,'' said Sen. Kirsten Engel, D-Tucson.
"It does seem like this is a criminal act,'' she continued. "I am concerned that we are not necessarily identifying it as such.''
Engel said it might be possible to have separate legislation to address that.
The committee action sends the measure to the full Senate.

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