Apr. 2—CHAMPAIGN — Christie Clinic is claiming that the state's new fertility fraud law is unconstitutional as part of its efforts to dismiss a claim that it is liable for a case of fertility fraud allegedly perpetrated by one of its doctors 51 years ago.

Paula Duvall and her daughter, Erin Culver, filed a lawsuit in Champaign County Circuit Court in late February against the deceased Dr. Bradley D. Adams and the clinic under the state's new fertility fraud law, which went into effect in January.

Their complaint alleges that Adams used his own sperm to artificially inseminate Duvall in 1973 but told her it came from an anonymous donor. The two women are seeking a juried trial and damages in excess of $50,000.

"I feel like we have a very valid case," said Duvall. "And I think that when it's presented ... they will see that we truly are the victims in the situation."

Duvall and her counsel have said they believe this is the first lawsuit filed under Illinois' new fertility fraud law, which took effect on Jan. 1.

Christie Clinic filed its motion to dismiss on Friday. The clinic is seeking that the court either dismiss the complaint in regards to Christie and/or find the Illinois Fraud Act unconstitutional.

Duvall and Culver's suit also names Alice P. Adams as a personal administrator for the deceased Dr. Adams. As of Monday, the case docket did not show a return receipt for Alice Adams or an entry of appearance.

Among its reasons for requesting dismissal, the clinic argued that the Illinois Fertility Fraud Act violates due process protections and ex post facto provisions of the U.S. and Illinois constitutions due to its retroactive nature.

Heyl, Royster, Voelker & Allen, which is representing Christie in this case, has sent a notice of the clinic's claims to the Illinois Attorney General.

The notice, which was included as Exhibit B in the motion to dismiss, notes that the act provides a course of action in instances where a health care provider used their "own human reproductive material without the patient's informed written consent."

"The Act therefore requires a defendant to produce 'informed written consent' to defend against a claim; in other words, the only defense under the Act is to produce a document that defendants were not required to create much less maintain at the time of the occurrence," the law firm wrote. "A retroactive change in the law imposing a new duty is 'prohibited as a violation of the due process clause of the Illinois Constitution, and the legislature is without authority to enact such a law even if that is its express intention.' ."

The firm also claimed that three of the categories of "rewards" in the Illinois Fertility Fraud Act — attorney's fees, punitive damages and liquidated damages of $50,000 — are "unconstitutional provisions" in that they increase the penalty for a "previously committed offense."

Local attorney Ellyn Bullock of Bullock Law LLC, who is part of the team representing Duvall and Culver, said that she looks forward to engaging in a discussion of the act's constitutionality and said that these questions may "end up in the appellate court."

She also believes the new law will "withstand all the challenges."

"The Illinois legislature specifically made it retroactive because of this kind of tort," Bullock said. "This kind of fraud, in fertility fraud, has to be retroactive. Think about it. ... How else would you catch them but retroactively?"

She added that the technology available for both genetic tests and assisted reproduction has evolved greatly in the past 50 years.

The clinic's motion to dismiss also argues that, as a health care facility, it is not a proper defendant under the Illinois Fertility Fraud Act.

According to the act, certain individuals affected by fertility fraud can bring an action against: "any health care provider, embryologist, or any other person involved in any stage of the treatment who knowingly or intentionally used the health care provider's, embryologist's, or person's own human reproductive material without the patient's informed written consent to treatment using the health care provider's, embryologist's, or person's human reproductive material."

The act defines the term health care provider as "a physician, physician assistant, advanced practice registered nurse, registered nurse, licensed practical nurse, any individual licensed under the laws of this State to provide health care, or any individual who handles human reproductive material in a health care setting."

The clinic noted that while the plaintiffs argued that Dr. Adams falls under this definition, they did not claim the same for Christie Clinic.

"A corporation is a legal entity without the wherewithal to produce its 'own' sperm," the motion stated. "...Christie Clinic, PLLC cannot be the father of a child — a truly absurd result if the statute is construed to include healthcare institutions."

The complaint by Duvall and Culver said that the clinic was liable under the theory as it employed Dr. Adams at the time of the alleged fertility fraud.

However, Christie's motion argues that the theory does not apply in this case because it is not present in the new law and contradicts precedents set by and that an employer is liable if an employee's actions were committed "in furtherance of the business of the employer" but not if they were committed to benefit the employee alone.

Bullock, however, told The News-Gazette it's her understanding that the theory can be applied based on where misconduct took place.

"He was in his office," she said. "He was using his Christie Clinic credentials."