FARA’s “Any Time” Clause Does Not Create Retroactive Liability Absent Express Retroactivity Language

I. Introduction

In Bert Miller and Nancy Duffner v. State of Iowa (Iowa Mar. 14, 2025), the Iowa Supreme Court confronted a recurring problem in modern “fertility fraud” litigation: DNA testing can reveal decades later that a fertility physician used his own sperm without the patient’s consent. Plaintiffs Bert Miller and Nancy Duffner—children conceived during fertility treatment at the University of Iowa Hospitals in the 1950s—alleged their parents’ physician, Dr. John H. Randall (a state-employed department head), used his own sperm and concealed that fact. Dr. Randall and the parents are deceased.

The case turned not on whether the alleged conduct was wrongful, but whether Iowa’s 2022 Fraud in Assisted Reproduction Act (FARA), Iowa Code §§ 714I.1–.4 (2023), can be applied to impose new civil liability for conduct occurring decades before enactment. Plaintiffs argued FARA must reach past conduct because it authorizes suits by children and provides that an action “may be commenced at any time” and is “not subject to a statute of limitations.” The State argued FARA lacks an express retroactivity directive and is therefore presumed to operate only prospectively.

II. Summary of the Opinion

The Iowa Supreme Court (Waterman, J.) affirmed dismissal with prejudice, holding that FARA does not apply retroactively. Because FARA contains no express language making it retrospective and it creates substantial new substantive liabilities, the statute is presumed prospective under Iowa Code § 4.5 (“A statute is presumed to be prospective in its operation unless expressly made retrospective.”). The Court rejected the argument that FARA’s “at any time”/no-limitations provision (Iowa Code § 714I.4(6)) implies retroactive coverage; that clause eliminates time-bars for future violations discovered late, but does not expand the statute’s reach to pre-enactment conduct.

III. Analysis

A. Precedents Cited

1. The controlling retroactivity framework

  • Hedlund v. State, 991 N.W.2d 752 (Iowa 2023): The Court applied Hedlund’s three-pronged test for retroactivity: (1) is the application retrospective; (2) should it apply retrospectively as a matter of statutory interpretation; (3) if yes, does substantive law bar retroactive application. The parties agreed this test controlled, and the Court resolved the case at prong two.
  • Hrbek v. State, 958 N.W.2d 779 (Iowa 2021): Quoted for the definition that an application is retrospective “when a statute applies a new rule, standard, or consequence to a prior act or omission.” The Court accepted (and the parties agreed) that applying FARA to the 1950s would be retroactive under this definition.
  • Nahas v. Polk County, 991 N.W.2d 770 (Iowa 2023): Central to prong two—Nahas held a newly enacted immunity statute did not apply to conduct preceding enactment because it contained “no express statement” making it retrospective. The Court used Nahas to reinforce that, absent express retroactivity language, Iowa courts apply the statutory presumption of prospectivity.

2. Iowa’s strong presumption against retroactivity for new substantive liabilities

  • Anderson Fin. Servs., LLC v. Miller, 769 N.W.2d 575 (Iowa 2009), quoting Baldwin v. City of Waterloo, 372 N.W.2d 486 (Iowa 1985) (en banc): Used for the rule that statutes affecting substantive rights are construed prospectively unless legislative intent to the contrary “clearly appears from the express language or by necessary and unavoidable implication.” The Court treated FARA as a quintessential “new substantive liability” statute and found no such clear expression.
  • State v. Macke, 933 N.W.2d 226 (Iowa 2019): Cited for the insistence that “clear indication of intent for retroactive application must be found in the te[x]t of the statute.” The district court relied on Macke, and the Supreme Court’s reasoning aligns with it: if the legislature “had to say so expressly” in Macke, it likewise had to do so in FARA.
  • Carver-Kimm v. Reynolds, 992 N.W.2d 591 (Iowa 2023): Reinforced Nahas by holding a nearly identical state-employee immunity statute prospective only. The Court deemed it “incongruous” to read FARA retroactively when recent cases refused retroactive application absent express text.
  • Sutton v. Council Bluffs Water Works, 990 N.W.2d 795 (Iowa 2023): Cited for the interpretive principle that the legislature knows existing law and caselaw when enacting statutes—supporting the inference that the legislature’s silence on retroactivity is meaningful in Iowa’s doctrinal environment.

3. Distinguishing plaintiffs’ retroactivity authorities

  • City of Waterloo v. Bainbridge, 749 N.W.2d 245 (Iowa 2008): Distinguished as involving a procedural statute applicable to proceedings after enactment, not a statute imposing new substantive liabilities for prior conduct.
  • Iowa Comprehensive Petroleum Underground Storage Tank Fund Board v. Shell Oil Co., 606 N.W.2d 370 (Iowa 2000): Distinguished because that statute contained explicit findings referring to “past and existing” leaks—textual evidence of retroactive intent. FARA contains no analogous language.
  • Frideres v. Schiltz, 540 N.W.2d 261 (Iowa 1995) (en banc): Used by analogy to reject the notion that extending or eliminating a limitations bar necessarily revives previously barred claims. As in Frideres, the Court refused to treat a limitations-related provision as an implied resurrection of old claims.

4. Other cited authorities reinforcing the analysis

  • Cianzio v. Iowa State Univ., 14 N.W.3d 716 (Iowa 2024): Quoted for the distinction between (a) deadlines to sue and (b) what substantive conduct is actionable. This supported the conclusion that Iowa Code § 714I.4(6) addresses timing, not retroactive scope.
  • State v. Rhodes, 6 N.W.3d 741 (Iowa 2024): Cited to caution against rigid overuse of the surplusage canon. The Court used this to reject plaintiffs’ claim that “may be commenced at any time” must do retroactivity work beyond “no statute of limitations.”
  • Landgraf v. USI Film Prods., 511 U.S. 244 (1994): Cited for the deep roots of the presumption against retroactive legislation and the institutional reason for requiring clear legislative statements before imposing retroactive consequences.
  • Downing v. Grossmann, 973 N.W.2d 512 (Iowa 2022): Mentioned to illustrate existing doctrine (fraudulent concealment) that can sometimes extend filing time in medical contexts, underscoring that Iowa already has tools for late-discovered wrongdoing—but that is different from creating retroactive new causes of action.
  • Dolezal v. Bockes, 602 N.W.2d 348 (Iowa 1999): Cited (via a parenthetical in the opinion) to contrast procedural legislation (often applicable to pending matters) with substantive legislation (presumed prospective).
  • Standards-of-review cases: Nahas v. Polk County, Benskin, Inc. v. W. Bank, 952 N.W.2d 292 (Iowa 2020), and Shumate v. Drake Univ., 846 N.W.2d 503 (Iowa 2014) framed the motion-to-dismiss posture, but the outcome ultimately turned on statutory interpretation.

B. Legal Reasoning

1. The key interpretive command: Iowa Code § 4.5

The Court treated Iowa Code § 4.5 as the decisive interpretive baseline: statutes are prospective unless “expressly made retrospective.” While the State conceded “magic words” are unnecessary, the Court demanded express textual indication of retroactive reach—consistent with Macke, Nahas, Hedlund, and the text-driven approach to retroactivity.

2. FARA creates new substantive liabilities—heightening the need for clear retroactivity text

The Court emphasized that FARA is not merely procedural. It creates a new cause of action and authorizes punitive damages, attorney fees, statutory penalties, and other relief. Under Anderson Fin. Servs., LLC v. Miller and Baldwin v. City of Waterloo, such statutes are presumed prospective absent clear textual retroactivity.

3. Present-tense prohibitions and anachronistic consent requirements

The Court noted FARA’s operative prohibitions are stated in the present tense (“A person shall not…”), which reads as a forward-looking command. It also highlighted the practical and legal mismatch of imposing a written-consent regime on 1950s conduct—pointing out Iowa’s first written-consent statute was not enacted until 1975. This supported the conclusion that the legislature did not silently intend to regulate and penalize decades-old care under modern consent formalities.

4. Mixed civil-and-criminal structure and constitutional avoidance

FARA’s enactment also added criminal consequences (sexual abuse in the fourth degree) for certain conduct. Plaintiffs conceded those criminal penalties cannot apply retrospectively under the federal and state ex post facto clauses. The Court relied on Iowa Code § 4.4(1) (presuming legislative intent to comply with constitutions) and reasoned that a prospective reading of the statute avoids constitutional problems. The Court also observed plaintiffs cited no instance where Iowa would read the civil side retroactively while cabining the criminal side to post-enactment conduct, absent clear legislative direction.

5. The “at any time” clause is about timing, not scope

The crux of plaintiffs’ argument was Iowa Code § 714I.4(6): “an action…is not subject to a statute of limitations and may be commenced at any time.” The Court rejected the inference that this language revives pre-enactment claims. Drawing on Cianzio v. Iowa State Univ., the Court distinguished between (a) eliminating time-bars for actionable conduct and (b) defining what conduct is actionable in the first place. Subsection (6) removes limitations defenses for claims based on future violations discovered late (e.g., via DNA testing), but it does not state that conduct before 2022 is actionable.

6. Legislative silence, especially against the backdrop of other states and Iowa’s own drafting practice

The Court’s reasoning was reinforced by comparative and contextual drafting evidence:

  • Illinois expressly made its analogous statute retroactive: “it is the intent of the General Assembly that any civil action authorized by this Act shall be retroactive…” (815 Ill. Comp. Stat. § 540/5 (2024)). Iowa did not include comparable language.
  • Colorado expressly made its act prospective only (“applies to causes of action arising or offenses committed on or after…”) and Nevada tied applicability to claims accruing after a date—examples of legislatures speaking clearly when they mean to control temporal reach.
  • Iowa itself has used express retroactivity language in recent enactments (e.g., 2021 Iowa Acts ch. 183, § 26; 2020 Iowa Acts ch. 1070, § 11), underscoring that when the Iowa legislature wants retroactivity, it says so.

C. Impact

The decision establishes a clear Iowa rule for FARA litigation: FARA’s civil cause of action does not reach pre-2022 fertility fraud unless the legislature amends the statute to say so expressly. Practically, this means:

  • Historical fertility-fraud claims in Iowa (especially mid-20th-century conduct) cannot be brought under FARA, even though DNA testing may reveal the fraud only recently.
  • “No statute of limitations” in § 714I.4(6) protects future plaintiffs from late discovery, but does not revive or create liability for pre-enactment conduct.
  • The opinion signals that courts will not infer retroactivity from remedial purpose or from broad timing language; retroactivity must be anchored in statutory text.
  • For governmental defendants (here, the State as employer), the ruling prevents FARA from becoming a vehicle for expansive, decades-spanning institutional liability absent explicit legislative choice.

The Court also leaves open—because it did not reach prong three—what constitutional or substantive limits (e.g., due process) might constrain any future legislative attempt to impose retroactive FARA liability.

IV. Complex Concepts Simplified

Retroactive/retrospective application
Applying a new law to events that occurred before the law existed—i.e., attaching new legal consequences to old conduct.
Presumption of prospectivity (Iowa Code § 4.5)
Iowa’s default rule: new statutes apply forward only unless the legislature clearly and expressly states they apply backward.
Substantive vs. procedural laws
Substantive laws create or change rights and liabilities (e.g., creating a new cause of action and damages). Procedural laws govern how cases are processed (e.g., filing steps or evidentiary rules). Courts are far more reluctant to apply new substantive liabilities to past events.
Statute of limitations
A deadline to file suit after a claim accrues. Removing a statute of limitations does not necessarily mean the legislature intended to make conduct from before enactment actionable.
Ex post facto
A constitutional prohibition on retroactively increasing criminal punishment. The Court used this in the background to support a prospective reading of a statute that includes criminal penalties.
Surplusage canon
A principle that courts try to give effect to every word of a statute. The Court cautioned (citing State v. Rhodes) that redundancy can occur in drafting and does not justify rewriting a statute to achieve retroactivity.

V. Conclusion

Bert Miller and Nancy Duffner v. State of Iowa crystallizes a textual, presumption-driven approach to retroactivity in Iowa: when a statute creates new substantive civil liability—especially alongside criminal penalties— retroactive application requires express statutory language. FARA’s “no statute of limitations” and “may be commenced at any time” provisions expand the filing window for future violations discovered late, but they do not transform the statute into a remedy for pre-2022 misconduct. The decision places the responsibility for any retroactive fertility-fraud remedy squarely on the legislature, not the courts.