Fertility Fraud: Federal Criminal Law Issues

Fertility Fraud: Federal Criminal Law Issues

July 19, 2022
Fertility Fraud: Federal Criminal Law Issues
Recent media attention has focused on medical fertility
requirements of the wire and mail fraud statutes,
specialists who have misrepresented the provenance of
respectively. The dispositive issue is likely to be the
biological material—for example, inseminating patients
defendant’s state of mind and whether he intended to
with the specialists’ own sperm. Often called “fertility
defraud the patient or instead was motivated by other
fraud,” this conduct is specifically covered by a number of
reasons such as sexual gratification. However, so long as
state criminal laws. E.g., Ark. Code Ann. § 5-13-212
intent to defraud was one motivation, it may be sufficient,
(“Fertility treatment abuse”); Tex. Penal Code Ann.
because ordinarily “a specific intent need not be the actor’s
§ 22.011(b)(12)(“Sexual Assault”). At the federal level, no
sole, or even primary, purpose.” United States v.
statute expressly criminalizes fertility fraud, but federal
Technodyne LLC, 753 F.3d 368, 385 (2d Cir. 2014).
prosecutors have successfully used generally applicable
federal criminal statutes to charge individuals for engaging
Travel Fraud, 18 U.S.C. § 2314
in conduct connected with fertility fraud schemes.
Section 2314 of Title 18 of the U.S. Code imposes fines or
up to 10 years of imprisonment, or both, for travel fraud,
Federal Criminal Laws
which occurs when (1) a defendant devises a scheme with
Conduct associated with fertility fraud schemes may
intent to defraud a victim of money or property worth at
implicate a number of generally applicable criminal
least $5,000 and (2) a victim is induced to travel in
statutes, including those prohibiting mail and wire fraud
interstate commerce as a result of the scheme. United States
and those prohibiting travel fraud. For instance, federal
v. Thomas, 377 F.3d 232, 236 (2d Cir. 2004). The travel
prosecutors used these statutes to indict a medical doctor in
fraud statute could potentially encompass fertility fraud
connection with a variety of fraudulent conduct, including
schemes, such as those where the victim is induced to cross
inducing false pregnancies, diagnosing false miscarriages,
state lines for the underlying procedure and then charged
and inseminating patients with his own sperm despite
$5,000 or more in resulting medical bills. See Jacobson,
guarantees that the samples came from an anonymous
1993 WL 343172, at *2, *4 (affirming § 2314 conviction
donor. United States v. Jacobson, 785 F. Supp. 563, 566
where medical provider induced “his out-of-state patients to
(E.D. Va. 1992). Ultimately, the prosecution resulted in a
travel to Virginia in order to undergo fraudulent medical
guilty verdict and a sentence of 60 months of imprisonment,
treatment at his infertility clinic”).
which was affirmed on appeal. United States v. Jacobson,
No. 92-5406, 1993 WL 343172, at *1, *2 (4th Cir. 1993
Deception of Health Care Benefit Programs
Sep. 3, 1993) (per curiam).
Fertility fraud schemes could potentially violate additional
federal criminal statutes if they involve the deception of
Mail and Wire Fraud: 18 U.S.C. §§ 1341; 1343
“health care benefit programs,” a category that
The mail and wire fraud statutes are broad statutes that
encompasses public and private insurers. For example, 18
criminalize conduct related to schemes to defraud—that is,
U.S.C. § 1347 criminalizes certain schemes to defraud
schemes to deprive someone of money, property, or honest
health care benefit programs, and 18 U.S.C. § 1035(a)(2)
services through methods such as trickery or deceit. To
prohibits various false material statements directed to health
prove a violation of the mail fraud statute, the government
care benefit programs. Violations of either statute are
must prove willful participation in the scheme to defraud;
felonies punishable by imprisonment, fines, or both. With
use of the mails in furtherance of the scheme; and intent to
respect to § 1347, an “essential element of health care fraud
defraud the victim of money, property, or honest services.
is that the fraud was perpetrated on a health care benefit
The elements of wire fraud are nearly identical, except
program.” United States v. Anderson, 822 F. App’x 271,
rather than proving use of the mails, the government must
275 (5th Cir. 2020). Further, at least one federal appellate
prove furtherance of the scheme through the use of
court has concluded that § 1035(a)(2) encompasses only
interstate wires, which may include, among other things,
false statements that are material to health benefit
emails, telephone calls, faxes, and statements on websites.
programs. United States v. Natale, 719 F.3d 719, 742 (7th
Use of the mails or interstate wires need only be reasonably
Cir. 2013). Therefore, these provisions are likely
foreseeable to the defendant and incidental to an essential
inapplicable in instances where the patient has been
element of the scheme to defraud. Violators of these
defrauded or deceived but the insurer has not.
statutes face significant penalties: generally fines or up to
20 years of imprisonment or both. As Jacobson illustrates,
Limitations of Federal Criminal Prosecution
fertility fraud schemes could run afoul of the mail and wire
Fertility fraud may not be immediately discovered by the
fraud statutes. For instance, use of the internet to schedule
victims, and in some instances the underlying conduct may
an appointment at which fertility fraud occurs, or use of the
go undiscovered for years or decades. This delay may limit
mail to bill the patient for the appointment where it
the feasibility of federal prosecution. As a legal matter,
occurred, could potentially satisfy the jurisdictional
pursuant to a default statute of limitation, federal
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Fertility Fraud: Federal Criminal Law Issues
prosecutions for noncapital offenses must generally be
of interstate commerce—such as the internet and
brought within five years of the commission of the offense.
telephones—to promote and arrange fertility appointments
18 U.S.C. § 3282. However, 18 U.S.C. § 3297 creates a
at which the deceptive insemination occurs. Alternatively,
new window of time to bring a prosecution, equal to the
the procedures may involve payments made or received
original period, that runs from when “DNA testing
through health care benefit programs, which themselves
implicates an identified person in the commission of a
affect commerce. 18 U.S.C. § 24(b). Further, the patients
felony.” In one illustrative case, § 3297 permitted the 2013
themselves may travel in interstate commerce for the
indictment of a defendant for a 2003 bank robbery.
underlying appointments at which the fertility fraud occurs,
Although the initial five-year statute of limitations had
thus possibility satisfying the jurisdictional requirement.
expired, the defendant had been linked to the crime by a
2010 DNA test, which initiated a new five-year window.
These types of jurisdictional hooks currently appear in a
United States v. Sylla, 790 F.3d 772, 775 (7th Cir. 2015). In
number of federal criminal statutes. For example,
instances where DNA testing of a patient or provider links
subsection (d) of the female genital mutilation statute—18
the provider to fertility fraud, § 3297 might be applicable
U.S.C. § 116—requires that the underlying offense satisfy
assuming the fertility fraud amounts to a federal felony
one of several jurisdictional nexuses. They include, for
such as wire fraud. Depending on the circumstances of the
example: the defendant or victim travels in interstate or
underlying offense, other rules may impact when the statute
foreign commerce in connection with the offense, the
of limitations begins to run. For example, in criminal
defendant transmits a communication related to the offense
conspiracies prosecuted under 18 U.S.C. § 371, the statute
in interstate or foreign commerce, and the victim makes a
of limitations does not begin to run until the last overt act
payment in interstate commerce in connection with the
committed in furtherance of the conspiracy is complete.
underlying offense. Subsection (d) also includes a
Fiswick v. United States, 329 U.S. 211, 216 (1946). As a
jurisdictional nexus not grounded in Congress’s commerce
practical matter, even if an exception to the statute of
authority: It also prohibits offenses that occur in the special
limitations applies, prosecuting older cases of fertility fraud
maritime or territorial jurisdiction of the United States.
may prove difficult due to a lack of evidence. For example,
establishing the jurisdictional elements of mail fraud and
Although Congress may regulate fertility fraud in line with
wire fraud may be challenging if records of the mailings,
these jurisdictional limitations, there is an additional
phone calls, or other communications connected to such
constitutional consideration that may be relevant to
offenses no longer exist.
potential federal legislation addressing fertility fraud. As a
result of the Ex Post Facto Clause of the Constitution—
Congressional Authority
which prohibits retroactive penal laws—any new fertility
Under the Constitution, the federal government lacks a
fraud crime created by Congress would not encompass
general police power, which is instead reserved for the
instances of fertility fraud that occurred prior to enactment,
states. Thus, when Congress seeks to enact criminal law, it
even if those instances were discovered after the enactment
generally does so pursuant to one of its enumerated
of such a law. Federal prosecution of such conduct would
constitutional authorities. For example, the Commerce
therefore depend on the extent to which it violated
Clause—found in Article I, Section 8, Clause 3, of the
preexisting federal statutes such as those described above.
Constitution—grants Congress the power to “regulate
Commerce . . . among the several States.” This provision
Additional Reading
gives Congress broad authority, and many federal criminal
statutes rely on Congress’s commerce power. In United
The following CRS products provide additional analysis of
States v. Lopez, 514 U.S. 549 (1995), the Supreme Court
legal issues presented in this sidebar:
held that Congress’s power to regulate pursuant to the

CRS Report R41930, Mail and Wire Fraud: A Brief Overview
commerce power extends to “three broad categories of
of Federal Criminal Law, by Charles Doyle
activity.” Those include:

CRS Report R45479, Bribery, Kickbacks, and Self-Dealing:
An Overview of Honest Services Fraud and Issues for
1. Channels of interstate commerce, such as
Congress, by Michael A. Foster
highways and telecommunications
networks;

CRS Report RL31253, Statute of Limitation in Federal
Criminal Cases: An Overview, by Charles Doyle
2. Instrumentalities of interstate commerce
or persons or things in interstate

CRS Legal Sidebar LSB10313, Congressional Authority to
commerce, such as vehicles, shipments of
Enact Criminal Law: Female Genital Mutilation (FGM), by
goods, telephones, and smartphones;
Michael A. Foster
3. Activities that substantially affect

CRS In Focus IF11293, Retroactive Legislation: A Primer for
interstate commerce.
Congress, by Joanna R. Lampe
If Congress wants to create a new fertility fraud law—for

example, by expressly criminalizing the act of inseminating
a patient with biological material other than that material
consented to by the patient—it is possible to envision a
Peter G. Berris, Legislative Attorney
number of jurisdictional hooks that would permit it to do so
IF12168
pursuant to its interstate commerce authority. For example,
medical providers may use channels and instrumentalities

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Fertility Fraud: Federal Criminal Law Issues

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