One of Boston’s most prominent fertility doctors is being sued for apparently using his own sperm to impregnate a patient without her knowledge more than four decades ago. The alleged act that was uncovered when the child got the results of an at-home DNA test this year.
Dr. Merle Berger, who is now retired, went on to found Boston IVF in 1986, a nationally leading fertility clinic, and worked at Harvard Medical School as an associate clinical professor for 35 years. He also served as the president of the New England Fertility Society in 1992.
Sarah Depoian and her husband went to Berger in 1980 when they were struggling to conceive, according to the complaint filed Wednesday in federal court. Berger told them he would use sperm from an anonymous donor who resembled her husband, Depoian claims, but instead used his own sperm.
“To be clear, Sarah would not have consented if Dr. Berger had told her that he was going to insert his own sperm into her body. Sarah feels incredibly violated,” Adam Wolf, Depoian’s attorney, said Wednesday.
“And we're all wondering if Dr. Berger may have violated other unsuspecting patients,” Wolf added.
Depoian’s daughter, Carolyn Bester, did an at-home DNA test that showed two biological relatives.
“I knew plenty of people who’ve tried DNA tests, and I actually thought I was going to have a lot of fun doing the research,” Bester said.
She then pieced together that Berger was her biological father, she says, when a relative of Berger’s reached out to her on one of the ancestry platforms, trying to figure out how they could be related.
Bester, a New Jersey lawyer who now has a 5-year-old son of her own, says that she hadn’t known before taking the DNA tests that the father who raised her was not her biological father. But the bigger shock, for her, was coming to the conclusion that Berger was her genetic parent.
“That was its own shock,” she said. “That was when — really, I didn’t get out of bed for a day after that.”
Berger is being sued for fraud and under Massachusetts’ consumer protection law.
Boston IVF addressed the lawsuit Wednesday evening.
“This matter occurred more than 40 years ago which was prior to Dr. Berger’s employment at Boston IVF and, in fact, before our company existed,” a representative for Boston IVF wrote in an emailed statement. “We wish to highlight that the field of reproductive endocrinology and infertility is much different than it was decades ago, and the safety measures and safeguards currently in place would make such allegations virtually impossible nowadays.”
Allegations of fertility fraud like those made against Berger are rare, but more cases have arisen as at-home DNA tests have begun to uncover malpractice in the early days of the field. Jody Madeira, a leading fertility fraud expert, said she and her colleagues have been approached by individuals involved in more than 40 different cases.
She explained that though the 1970s and ’80s are sometimes referred to as the “bad old days” of reproductive medicine, established practices at the time included informed consent.
“Some doctors who have been ... outed for this conduct after their victims found out through 23andMe, these doctors assert, ‘Oh, this wasn't — practices changed,’” Madeira said. “They haven't.”
A doctor in Vermont was ordered to pay $5 million in damages last year for a similar case. Dr. John Boyd Coates III had told a patient that he would use sperm from an unnamed medical student, but instead used his own.
Another such case was popularized with a Netflix documentary, “Our Father,” about an Indiana doctor who fathered nearly 100 children with his patients while claiming to use anonymous sperm or the husband’s sperm.
“We believe that there is no fertility for a doctor that has just, essentially done this once,” said Madeira, who was involved in the Netflix documentary. “Most have a sibling group of about 17 to 20.
“I would be very surprised that, in this case, there is just one,” she added.
In the 1970s and ’80s, the first baby born via in-vitro fertilization had just been born three years before Bester’s own birth, and the complete sequencing of the human genome was still decades away. Issues with fertility were more widely considered secretive and shameful. Doctors often encouraged their patients to keep their use of donor sperm a secret, as Wolf says Berger did in Depoian’s case.
Berger’s attorney Ian Pinta, a partner at Todd & Welp LLP, says the allegations “have no legal or factual merit, and will be disproven in court.”
“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,” Pinta wrote in a statement. “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.”
Wolf, Depoian’s attorney, acknowledged Berger’s prolific and prominent work in the fertility industry.
“But Dr. Berger's professional achievements do not excuse this heinous, heinous actions,” he said. “And they will not shield him from justice. He knew better than to abuse his patient.”
More than 150,000 babies have been born through Boston IVF’s network of fertility clinics since its founding in 1986 — five years after Carolyn Bester was born.
“I am struggling to process it, but this never, ever will change the love we have for our daughter, Carolyn,” Depoian said. “Today, our voices will be an instrument of justice.”
