Academic journal article The Journal of Gender, Race and Justice

Guidelines but No Guidance: vs. FDA

Academic journal article The Journal of Gender, Race and Justice

Guidelines but No Guidance: vs. FDA

Article excerpt


As a registered nurse and family nurse practitioner who practices at the only sperm bank in North America that actively recruits Gay and Bisexual sperm donors, I am deeply concerned about the draft Guidance Document published by me Food and Drug Administration (FDA) on May 25, 2004, which advises banning men who have had sex with other men within the last five years from being sperm donors.1 The FDA claims that its purpose in issuing this draft Guidance Document is to protect the public against HIV and other diseases.2 Unfortunately, its rationale is not only unjustified, as current laws and practices already provide such protection; it is also misleading. In issuing this draft Guidance Document, the FDA has forsaken its role as a protector of public health and embraced a grievously bigoted and discriminatory position. The problem is, as the Supreme Court stated, criminalization of homosexual conduct leads to pervasive discrimination against Gays and Lesbians in both the public and private realms.3


Rainbow Flag Health Services & Sperm Bank (aka is a unique business. We recruit donors whose identity will be revealed to the mother when the child is tiiree months old. The moms must call die donor by the child's first birthday. Many donors have continuing contact with the children. Although the children know the donor is their genetic father, they also know the donor is not their parent. Many adults are confused by tiiis, but it never fails to amaze me that all of the children understand who their parents are. The model for mis is open adoption where children may have continuing contact with their birth parents. Children know the difference between their real parents (the people who are raising them) and tiieir birth parents (the people with whom they share a biological connection). Similarly, donors at Rainbow Flag, like birth parents, have neither custody rights nor financial obligations to their biological children but often play the same role that an uncle or godfather might in the children's lives.

Although we have some heterosexual clients, Rainbow Flag primarily serves individual Lesbians and Lesbian couples who believe tiiat children have a right to know their biological fathers while they are going up. Most of our donors are Gay men who have chosen not to raise children themselves but still wish to procreate and have contact with their biological offspring. Many Lesbians, fearing misunderstanding from heterosexual donors, prefer Gay donors. Symbiosis. Rainbow Flag Health Services & Sperm Bank is one of a handful of fertility services and sperm banks that does not discriminate on the basis of sexual orientation with regard to botii donors and recipients.

If the Food and Drug Administration's proposed draft Guidance Document4 is finalized with its present recommendation intact, to exclude Gay donors (men who have had sex with another man in the last five years), it will not stop Rainbow Flag (or anyone else) from using Gay donors because Guidance Documents do not have the force of law.5 But it will affect us; it already has. Many doctors and fertility clinics, unaware that the Guidance Document does not have me force of law (and mistakenly believing that it has been finalized), have refused to accept sperm from our bank. To date, a careful explanation of the facts has reversed these decisions, but we are not so foolish to think that we will continue to be 100% successful. With regard to Gay sperm donors, scientific fact has little to do with the FDA's draft Guidance Document.6 The Guidance Document's very existence will be another excuse for those who wish to discriminate against Lesbians and Gay men.

The excuse the FDA gives in issuing new regulations and suggesting a ban on Gay donors in its draft Guidance Document is to protect the public against HIV and other diseases.7 The facts suggest otherwise. Since the HIV antibody test started being used in 1985, only one woman has been infected as a result of a medically supervised insemination. …

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