A Maine woman has accused a retired Boston doctor and pioneer in fertility treatment, Dr. Merle Berger, of impregnating her with his own sperm when she expected to receive anonymous-donor sperm during an artificial insemination procedure decades ago.
In a lawsuit filed Wednesday in US District Court, Boston, Sarah Depoian states that in 1980 she went to Berger’s office, which was in Dedham, for an intrauterine insemination and that he told her she would receive sperm from “a medical resident who resembled her husband, who did not know her, and whom she did not know.” Instead, the suit alleges, he “inserted his own sperm into her body.”
Late last year, Depoian’s daughter, 42-year-old Carolyn Bester, took a home DNA test that, the suit alleges, led her to suspect that Berger was her biological father. Confronted by the mother recently, according to the suit, Berger didn’t deny that he had used his own sperm.
Berger’s lawyer, Ian J. Pinta of Todd & Weld, said in a statement: “The allegations, which have changed repeatedly in the six months since the plaintiff’s attorney first contacted Dr. Berger, have no legal or factual merit, and will be disproven in court.” (The plaintiff’s lawyer denied that the allegations have changed.)
The case is one of many such instances that have come to light in recent years as people research their ancestry through mail-order genetic testing companies such as 23andMe. Most cases date to the 1960s and ‘70s, before there were sperm banks. But just last week, a physician in Washington surrendered his license after a patient accused him of artificially inseminating her with his own sperm in 2009.
“Some people call this horrific act medical rape,” Adam Wolf, the lawyer handling the Boston case, said at a virtual press conference Wednesday to announce the suit against Berger. ”But regardless of what you call it, Dr. Berger’s heinous and intentional misconduct is unethical, unacceptable, and unlawful.”
But Pinta, Berger’s lawyer, said the case needs to be seen in its historical context. “Dr. Merle Berger was a pioneer in the medical fertility field who in 50 years of practice helped thousands of families fulfill their dreams of having a child,” he said in an email. “He is widely known for his sensitivity to the emotional anguish of the women who came to him for help conceiving. The allegations concern events from over 40 years ago, in the early days of artificial insemination. At a time before sperm banks and IVF, it was dramatically different from modern-day fertility treatment.”
Berger, who has homes in Boston and on Martha’s Vineyard, founded Boston IVF in 1986 along with three other physicians. It is now one of the country’s largest infertility treatment centers, with clinics in six states. For decades until 2021, Berger trained Harvard Medical School residents and fellows as a clinical faculty member at Beth Israel Deaconess Medical Center. A blog post on the Boston IVF website, honoring his retirement in 2020, called Berger’s career “essentially the history of IVF in America.”
In his 2020 book, “Conception: A Fertility Doctor’s Memoir,” Berger describes the early days of fertility treatment. “Until the advent of sperm banks in the 1980s, couples who needed donor sperm were treated, in retrospect, remarkably haphazardly,” he writes. Doctors would “search out healthy-appearing young men” and offer them “$50 per donated specimen.”
“I would always have three to ten men in my ‘stable,’ ” Berger writes, “so that when a patient was ovulating, I would call one of the men whose physical features most closely matched . . . the woman’s partner.”
Depoian, the plaintiff in the case filed Wednesday, said she had placed her trust in Berger. “He was a medical professional. It’s hard to imagine not trusting your own doctor,” she said at the press conference. “We never dreamt he would abuse his position of trust and perpetrate this extreme violation. I am struggling to process it.”
Bester, who was born in 1981, said she received her DNA results from Ancestry.com and 23andMe earlier this year.
“I was very eager to learn more about my family,” she said. “I actually thought I was going to have a lot of fun doing the research.” Instead, Bester received a shock: She learned for the first time that her father was not her biological father. She was adjusting to that idea when, a few weeks later, she heard from someone who had also done DNA testing and wanted to know how they were related.
“And she informed me in that conversation that she was related to Dr. Berger, which is why it led me to my conclusion that he was my biological father,” Bester said.
“That was its own shock,” she said. “I didn’t get out of bed for a day, to be honest. . . . That’s your life story, and that’s the story of how you were created.”
Bester, a lawyer who lives in New Jersey, said she has a 5-year-old son who is also affected by the discovery. “I know who my real family is. That will never change,” she said. “But I will always struggle with what Dr. Berger did to my mom and to us.”
After she learned about Bester’s ancestry, Depoian “contacted Dr. Berger through counsel,” the lawsuit states. “In response, Dr. Berger did not deny that he inserted his own sperm into Ms. Depoian’s body, contrary to her wishes and his promises. He also did not deny that he covered up his misconduct by not telling her about his actions after he performed the [intrauterine insemination].”
The suit accuses Berger of fraudulent concealment, intentional misrepresentation, and violation of the Massachusetts Consumer Protection Law, and seeks monetary damages.
Depoian is the only plaintiff in the current case. Wolf, who is with the law firm Peiffer Wolf Carr Kane Conway & Wise, said Bester also has been injured, but in a different way. “We believe Carolyn also does have viable claims, but they’re very different claims and very different injuries,” he said, adding that there “very well might be” a second lawsuit, from Bester.
Traci Portugal, who runs the website donordeceived.org for victims of “donor fraud,” said that discovering a mother’s fertility doctor is one’s father is “pretty life-altering.”
“You’re not only finding out that your father’s not your father, but it was a doctor who did something unethical,” she said. “Your whole sense of identity is wiped out in that moment.”
Portugal said she knows of at least 50 doctors who have secretly used their own sperm for artificial insemination, but believes there are many more.
Last year, a New York woman sued her gynecologist after her 37-year-old son’s genetic research identified the doctor, who has since died, as his father. Also last year a jury awarded $8.75 million to a couple and their daughters who sued a fertility doctor, accusing him of impregnating her with his own sperm in 1979 and 1984.
Although many of the cases date to a time when there were no banks of frozen sperm, Portugal said, “There’s nothing to stop a doctor from doing it today.”
Advocacy groups are pushing for federal legislation to address a host of issues surrounding fertility treatments, including retroactively ending anonymity and establishing guidelines for ethical behavior. “Right now, there’s really nothing, for those created through donor conception, to hold anybody accountable,” Portugal said.
Sean Cotter, Anna Kuchment, and Jeremiah Manion of the Globe staff contributed to this report.