Federal court rejects inmate’s lawsuit over IVF denial

A Minnesota federal district court has dismissed the lawsuit of a prison inmate who sought to have children through invitro fertilization and surrogacy but was turned away by the reproductive technologies company he contacted.

Damien Lashaun Nelson, currently incarcerated at the Minnesota Correctional Facility – Stillwater, sued the Center for Reproductive Medicine & Advanced Reproductive Technologies (CRM), claiming discrimination on the basis of his religion and carceral status.

Nelson successfully used IVF at CRM in 2017 and 2018 with his ex-wife. He was incarcerated in 2021 for criminal sexual conduct. He claims that he discovered through conversations with another inmate that incarcerated people can sire children through artificial insemination. He wished to sire additional children with gestational surrogates and other partners, and he reached out to his case worker to start the process. Nelson intended to have “multiple women and potential surrogate[s] participating.”

Nelson claims that Dr. Joshua Kapfhamer of CRM agreed to provide services in October 2023. However, according to Nelson, in April 2024, CRM terminated those services, stating that it had a policy against working with incarcerated people.

“CRM … spontaneously ended the agreement after questioning Claimant about his religious and familiar beliefs of polygamy,” Nelson stated in the complaint.

The case was originally filed in Hennepin County district court, but it was removed to federal court in December 2024. Nelson claimed breach of contract, asserting that “the breach was pursued to discriminate against the institution of polygamy, and or Islam or the Islamic culture, and or Black Hip-Hop culture that embraces polygamy.”

Nelson stated that he was prohibited from discarding sperm due to his religious beliefs as a practicing Muslim. He claimed discrimination based on his carceral status and religion. Nelson claimed that he had spent between $55,000 and $100,000 per gestational carrier, with costs including agreements, transportation, security, and medical preparations. He sought a preliminary injunction against alleged unconstitutional conduct targeting him, as well as monetary relief “not to exceed $3.3 Million U.S.D.”

Judge Donovan Frank, who heard the case once it was removed to Minnesota federal district court, determined that Nelson failed to demonstrate which services CRM was supposed to perform or what Nelson would pay CRM. Specifically, Frank concluded that Nelson failed to demonstrate a contract. “Nelson does not allege any specifics of what services CRM was supposed to perform or what Nelson would pay CRM,” Frank wrote. “Such bare bones descriptions of an alleged contract are insufficient.”

Frank also rejected Nelson’s intentional infliction of emotional distress claim, reasoning that, even if there was a valid contract between Nelson and CRM, terminating it was not “utterly intolerable to the civilized community.” He continued that, even if CRM terminated the contract due to Nelson’s status as an incarcerated person, “the conduct is still not extreme or outrageous.”

“Federal and state law protect against discrimination in employment, housing, public accommodations, public services, and education,” Frank continued. “While incarcerated individuals are protected from discrimination based on protected categories in these contexts, the status of being incarcerated is not a protected category.”

Nelson has other children. A paternity judgment was entered in 2020, finding that Nelson was the father of a child born in 2020 and ordering him to be financially responsible for that child.