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1 1 (July 19, 2022)

handle is hein.crs/govehyv0001 and id is 1 raw text is: Informing 0 sona! Researet, Service heled Ilive debato since 1914 July 19, 2022 Fertility Fraud: Federal Criminal Law Issues Recent media attention has focused on medical fertility specialists who have misrepresented the provenance of biological material-for example, inseminating patients with the specialists' own sperm. Often called fertility fraud, this conduct is specifically covered by a number of state criminal laws. E.g., Ark. Code Ann. § 5-13-212 (Fertility treatment abuse); Tex. Penal Code Ann. § 22.011(b)(12)(Sexual Assault). At the federal level, no statute expressly criminalizes fertility fraud, but federal prosecutors have successfully used generally applicable federal criminal statutes to charge individuals for engaging in conduct connected with fertility fraud schemes. Federal Criminal Laws Conduct associated with fertility fraud schemes may implicate a number of generally applicable criminal statutes, including those prohibiting mail and wire fraud and those prohibiting travel fraud. For instance, federal prosecutors used these statutes to indict a medical doctor in connection with a variety of fraudulent conduct, including inducing false pregnancies, diagnosing false miscarriages, and inseminating patients with his own sperm despite guarantees that the samples came from an anonymous donor. United States v. Jacobson, 785 F. Supp. 563, 566 (E.D. Va. 1992). Ultimately, the prosecution resulted in a guilty verdict and a sentence of 60 months of imprisonment, which was affirmed on appeal. United States v. Jacobson, No. 92-5406, 1993 WL 343172, at *1, *2 (4th Cir. 1993 Sep. 3, 1993) (per curiam). Mail and Wire Fraud: 1S U.S.C. §§ 1341; 1343 The mail and wire fraud statutes are broad statutes that criminalize conduct related to schemes to defraud-that is, schemes to deprive someone of money, property, or honest services through methods such as trickery or deceit. To prove a violation of the mail fraud statute, the government must prove willful participation in the scheme to defraud; use of the mails in furtherance of the scheme; and intent to defraud the victim of money, property, or honest services. The elements of wire fraud are nearly identical, except rather than proving use of the mails, the government must prove furtherance of the scheme through the use of interstate wires, which may include, among other things, emails, telephone calls, faxes, and statements on websites. Use of the mails or interstate wires need only be reasonably foreseeable to the defendant and incidental to an essential element of the scheme to defraud. Violators of these statutes face significant penalties: generally fines or up to 20 years of imprisonment or both. As Jacobson illustrates, fertility fraud schemes could run afoul of the mail and wire fraud statutes. For instance, use of the internet to schedule an appointment at which fertility fraud occurs, or use of the mail to bill the patient for the appointment where it occurred, could potentially satisfy the jurisdictional requirements of the wire and mail fraud statutes, respectively. The dispositive issue is likely to be the defendant's state of mind and whether he intended to defraud the patient or instead was motivated by other reasons such as sexual gratification. However, so long as intent to defraud was one motivation, it may be sufficient, because ordinarily a specific intent need not be the actor's sole, or even primary, purpose. United States v. Technodyne LLC, 753 F.3d 368, 385 (2d Cir. 2014). T ravel Fraud, 18 U.S.C. § 2314 Section 2314 of Title 18 of the U.S. Code imposes fines or up to 10 years of imprisonment, or both, for travel fraud, which occurs when (1) a defendant devises a scheme with intent to defraud a victim of money or property worth at least $5,000 and (2) a victim is induced to travel in interstate commerce as a result of the scheme. United States v. Thomas, 377 F.3d 232, 236 (2d Cir. 2004). The travel fraud statute could potentially encompass fertility fraud schemes, such as those where the victim is induced to cross state lines for the underlying procedure and then charged $5,000 or more in resulting medical bills. See Jacobson, 1993 WL 343172, at *2, *4 (affirming § 2314 conviction where medical provider induced his out-of-state patients to travel to Virginia in order to undergo fraudulent medical treatment at his infertility clinic). Deception of Health Care Benefit Programs Fertility fraud schemes could potentially violate additional federal criminal statutes if they involve the deception of health care benefit programs, a category that encompasses public and private insurers. For example, 18 U.S.C. § 1347 criminalizes certain schemes to defraud health care benefit programs, and 18 U.S.C. § 1035(a)(2) prohibits various false material statements directed to health care benefit programs. Violations of either statute are felonies punishable by imprisonment, fines, or both. With respect to § 1347, an essential element of health care fraud is that the fraud was perpetrated on a health care benefit program. United States v. Anderson, 822 F. App'x 271, 275 (5th Cir. 2020). Further, at least one federal appellate court has concluded that § 1035(a)(2) encompasses only false statements that are material to health benefit programs. United States v. Natale, 719 F.3d 719, 742 (7th Cir. 2013). Therefore, these provisions are likely inapplicable in instances where the patient has been defrauded or deceived but the insurer has not. Limitations of Federal Criminal Prosecution Fertility fraud may not be immediately discovered by the victims, and in some instances the underlying conduct may go undiscovered for years or decades. This delay may limit the feasibility of federal prosecution. As a legal matter, pursuant to a default statute of limitation, federal

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