A state statute enacted in 2022 that created civil and criminal penalties for fertility doctors who fraudulently use their own sperm to help infertile couples conceive children through artificial insemination does not apply retroactively, the Iowa Supreme Court held in three decisions handed down March 14.
All three cases were controlled by the Court’s leading decision in Miller v. State of Iowa. The Court issued unsigned per curiam opinions in Bright v. State of Iowa and in Stoughton v. State of Iowa, which raised the same issue the Court decided in Miller.
Bert Miller and his sister Nancy (Miller) Duffner discovered that a fertility doctor used his own sperm to inseminate their mother in the 1950s, unbeknownst to them and apparently to their late mother as well. Miller and Duffner sued under the 2022 Fraud in Assisted Reproduction Act (FARA), naming as a defendant the State of Iowa, which had employed the since-deceased Dr. John Randall as a physician and head of the Department of Obstetrics and Gynecology at the University of Iowa Hospitals.
The question raised in Miller and Duffner’s appeal is whether FARA, enacted seven decades after the alleged fraudulent act, applies retroactively. The Court, in a unanimous decision written by Justice Thomas Waterman, concluded it applies only prospectively, not retroactively, affirming the district court’s dismissal of the suit with prejudice.
“On our review, we hold that FARA does not apply to fertility fraud committed before the statute was enacted,” the Court said. “FARA has no express retroactivity provision imposing liability for fertility fraud predating its enactment. Without such a provision, statutes creating new substantive liabilities are presumed to operate only prospectively, not to conduct occurring before the law goes into effect.”
The question of whether to apply the statute retroactively is one of statutory interpretation, Waterman wrote, and he quoted the statute as saying, in part, “A person shall not engage in a practice or act the person knows or reasonably should have known provides false information to a patient related to an assisted reproduction procedure or treatment including false information” relating to the procedure.
Randall’s alleged conduct would have been prohibited by that section of the act if FARA is applied retroactively, Waterman wrote, but that section speaks in the present tense. “One might expect that a statute enacted to address prior conduct would speak in the past tense,” he added.
The Court noted that written informed consent was not required for medical procedures in the 1950s, whereas FARA requires a patient’s express written consent for donor sperm. The Court agreed with the State, which argued that it would be “nonsensical” to impose liability for a statutory written-consent requirement that did not exist at the time the fertility service was provided.
“The Iowa legislature, when it chooses to do so, has expressly provided for retroactive operation in several recent enactments consistent with Iowa Code section 4.5 [which says a statute is presumed to be prospective in its operation unless expressly made retrospective],” Waterman wrote. “We conclude that if the legislature wanted FARA to apply to conduct preceding its enactment, it would have said so in the enactment. It did not.”
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