Unconstitutional sperm donation regulations? Really?

July 10, 2012Carole 2 Comments »

A recent Huff Post story caught my eye ,”Sperm Donation Lawsuit: Woman Sues FDA Over Sperm Donation Regulations (VIDEO)” . The facts of the story are this:

A woman and her female partner desire to have a child together. Obviously, they require sperm to produce a child. They feel that the FDA required sperm-testing regulations in place for the use of donated sperm in a health care facility are too onerous and are in fact unconstitutional. The anonymous plaintif “Jane Doe” argues through her attorney, Amber Abassi, that quote:

“When you are regulating private decisions between two individuals in a non-commercial context that have to do with something so intimate and personal as whether they want to have a child together, then the FDA regulations should not apply,” said Abbasi in an interview with Fox News.

Abbasi pointed out that there are no such requirements when heterosexual couples have sex, though the risks are the same. Furthermore, she argues, the current regulations can put women in an uncomfortable situation.

“[Jane Doe] does not want to be forced to engage in sexual intercourse with a male partner to conceive a child, even though such a male partner would not be subject to FDA-required screening and testing and other FDA-mandated donor-eligibility requirements,” wrote Abbasi in the suit.

“We don’t think the FDA’s intentions are bad–they are trying to protect the public from communicable diseases,” she wrote in a statement. “But this is literally stepping between two people who have agreed to have a child; the FDA should not regulate that.”

I get the dilemma. The simplest non-regulated way for a women to get sperm to have a child is to have sex with a man. Unfortunately, this simplest approach is a non-starter for a lesbian woman. The problem lies in the fact that once you need a host of professionals to accomplish what ideally would take place in your bedroom, then it becomes a question of liability for the professionals. In addition, the risks are NOT the same for the heterosexual couple and the lesbian couple.

It is technically simple for a male friend of a lesbian couple to come in and donate a specimen for their use. Any lab could process it for an IUI or IVF sample just as they do for any heterosexual couple in the clinic. The crucial difference is that the heterosexual couple are already having sex and are thus exposed to any transmissionable diseases from the exchange of bodily fluids between them. The heterosexual couple is already at some risk; that risk may be negligible or significant. Processing the male partner’s specimen for this heterosexual couple does not increase their risk of exposure. The clinic has no liability from reproducing a risk that already exists. In some cases, processing for IVF may actually reduce the risk. In contrast, the lesbian woman is not at risk of disease transmission from her male friend because they are not having sex. As soon as the lab processes the sample and exposes her to it, suddenly she is at risk. Her risk may be negligible or it may be large. We don’t know. That is why donor sperm is tested, quarantined and tested again before use-to minimize the risk of exposure.

When heterosexual couples use donor sperm, couples are typically asked to undergo STD testing before insemination. Clinics will typically require pre-insemination STD testing of any donor sperm recipient. There are several reasons for this. If the couple has an STD prior to insemination, it can be treated before proceeding with the insemination. Also, if a recipient of donor sperm becomes infected post-insemination, the source of the infection can be more easily determined if the baseline STD status is known. This is a type of defensive medicine commonly practiced to minimize the clinic’s liability from exposing their patients to donor sperm. If FDA mandated testing was overturned as unconstitutional, the unintended consequence would be that many clinics would no longer risk offering donor insemination because they will surely be sued if their patient contracted HIV or other STD from an insemination performed with untested sperm.

Some lesbian couples choose at-home insemination and bypass the clinic entirely. Some sperm banks will sell directly to customers without a doctor’s order and ship sperm to their home. The use of a turkey baster and at home insemination may not be as successful as monitored cycle insemination or IVF in a clinic, but babies have been born from this approach. So to say that no unregulated alternatives exist for the lesbian couple is not true.

And finally, would anyone feel that their constitutional rights were being infringed by safety regulations if these regulations were affordable so that no one would feel excluded from care they need? If the primary issue is really the expense of testing sperm and the cost of clinic treatment, then shouldn’t we work harder towards making fertility treatments more affordable rather than less safe?

© 2012, Carole. All rights reserved.

2 Responses to this entry

  • Daleth Says:

    The other thing Jane Doe is forgetting is that she is NOT choosing to have a child “with” the sperm donor. If she were, that sperm donor would be the legal father, able to sue for custody, and she would not be able to have her female partner adopt the child because it would already have two legal parents. What she gets from going to a clinic is not just a child, but a child that is legally all hers (and her partner’s or husband’s), NOT the donor’s.

    There have been cases in which unregulated turkey-baster “sperm donation” between friends ended up with the sperm donor being held liable for child support because he was the legal father. Sperm donors could also sue for custody, IF you do an unregulated home insemination. That’s the crucial distinction. Doing it in a doctor’s office under FDA regs is how you prove to the court that it really was sperm donation and the donor is not the father.

    If you do unregulated at-home sperm donation with a friend, and you’re not married to another man at the time, and you end up in court, the donor will virtually always be found to be the legal father. If you’re married to another man at the time of insemination and childbirth, the law will likely find him to be the legal father, but not always… it depends on the facts of your case, and it might cost you a LOT of money (lawyer’s fees).

    In other words, if you do unregulated at-home sperm donation, the only way you can definitely avoid having a court of law declare the donor to be the kid’s legal father is to (1) not get into litigation with the guy (he will be declared the father if you do) AND (2) not have to go on welfare/foodstamps (they will ask who the father is and force your friend/sperm donor to pay support) AND (3) not get involved in litigation with your partner (if you split up and she doesn’t want to have custody or pay support, she could tell the court about the sperm donor and he would then be found to be the legal father, getting her off the hook for child support).

    In other words, if you stay out of court and off welfare, you should be fine… but staying out of court isn’t under your control; the sperm donor could sue for custody or your partner could sue to get out of paying child support when you split, and then bingo, you’re in court. And the sperm donor is the legal father.

    We have fertility clinics so that you have the option of using a sperm donor WITHOUT him being found to be the legal father of your child. And to protect themselves, as Carole says, those clinics won’t do an insemination unless the sperm has been tested. It’s not fair to ask them to do otherwise. You have the choice to either risk STD’s and massive legal problems by doing an at-home insemination, or to not risk STD’s and be guaranteed ZERO legal problems by doing it at a clinic. To me that seems like the best balance between your rights and the rights of the clinics.

  • Joe Donor Says:

    I think the reason that the woman’s suit failed was that her rights weren’t affected in any way. The FDA had given Trent Arsenault a cease order. Furthermore, Trent is the one who applied to the FDA for approval as an approved facility. Of course, the FDA denied his application and did not approve his “facility”. I don’t think that Trent complained that the FDA was abusing his rights, it is unlikely that the FDA would have ever approached him if he hadn’t applied for approval. At least he wasn’t a party to the woman’s suit. And that is why her suit was dismissed, for failure to state a claim or something like that.

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