Judge rules invasion-of-privacy suit in Netflix documentary on fertility doctor can move forward

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A federal judge is allowing three central Indiana women who discovered they were among the nearly 100 “secret children” of a former fertility doctor to move ahead with their lawsuit against the producers of a popular Netflix documentary on the subject.

The women claim the producers of the film “Our Father” revealed their identities without their consent.

Janet Roe, Jane Doe and Janice Coe, remaining anonymous in their lawsuits, are suing Netflix Inc., Netflix Worldwide Entertainment LLC and Realhouse Productions LLC.

Roe and Doe are Marion County residents. Coe is a Hendricks County resident.

The case was originally filed in Marion County Superior Court but has since been moved to U.S. District Court in Indianapolis.

The suits allege that the defendants’ documentary identifies the plaintiffs as secret children of Donald Cline, a former Indianapolis fertility doctor who used his own sperm to impregnate dozens of women through artificial insemination in the 1970s and 1980s at his Indianapolis clinic, without the women’s consent or knowledge.

“Our Father” tells the story of Jacoba Ballard, a Putnam County woman who discovered that she was one of Cline’s children and that she has many previously unknown siblings living near her in Indiana. Those facts are revealed to her through her account with DNA testing company, 23andMe.

Some of the secret children wanted to expose Cline’s wrongdoing in inseminating women with his own semen. They reported him to local news outlets and government agencies.

But some of the secret children, including the plaintiffs, expressed concerns with being in the documentary. In 2021, the filmmakers sent written statements to several women, including the plaintiffs, which promised not to identify them without their explicit permission. The plaintiffs responded that the filmmakers did not have their permission to disclose their names in the documentary.

Nevertheless, the plaintiffs’ names appeared briefly in segments demonstrating how Jacoba Ballard discovered her previously unknown half-siblings’ existence and identities–by reading names as revealed to her in her 23andMe online account.

At the release of “Our Father,” the women say that they learned for the first time their names and images were used in the film despite privacy assurances from filmmakers.

The plaintiffs alleged that the defendants committed various torts by disclosing their identities to millions of people on social media and on their streaming platform without their consent.

The women claim the release of their identities as secret children has caused them “severe harm, including, but not limited to, reputational injury, distress, embarrassment, and emotional trauma.”

The defendants, for their part, argued that the plaintiffs’ claims are barred by the First Amendment of the U.S. Constitution and guarantees in the Indiana Constitution of free expression. They said the disclosed information was a matter of legitimate public concern.

Judge Tanya Walton Pratt ruled June 6 that the plaintiffs’ claims were not barred either by the First Amendment or the Indiana Constitution, and that their identities were not a matter of public interest.

“The newsworthy story was the general topic of fertility fraud,” Pratt ruled. “The plaintiffs’ identities were not, however, substantially relevant and directly related to the newsworthy story, nor a matter of public record, but, instead, were purely private matters.”

She said the defendants were not entitled to judgment on the plaintiffs’ complaint on invasion of privacy, deception and intentional infliction of emotional distress, and said the case could move forward.

However, she dismissed two other counts of plaintiffs—identity theft and identity deception.

An attorney for Netflix and Blumhouse Productions did not immediately respond to an IBJ email concerning the ruling.

Indianapolis attorney Robert MacGill, one of the lawyers representing the plaintiffs, told IBJ that the ruling by Pratt, along with a previous privacy ruling by the Indiana Supreme Court, provided “important standards for protecting privacy rights.”

“The privacy protections from this thoughtful jurisprudence will serve our society well given that ubiquitous technology can instantaneously propagate private and protected information,” MacGill wrote in an email.

Cline was criminally charged with obstruction of justice and handed a one-year suspended sentence in 2017 after pleading guilty to charges that he lied to investigators when he denied wrongdoing for inseminating the women.

After his expired license was eventually surrendered to the Indiana Medical Licensing Board, the panel voted to bar Cline from ever applying for a license in Indiana again.

In 2019, because of the Cline case, Indiana lawmakers passed a law allowing felony charges in cases of deception involving human sperm, eggs or embryos.

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