Regulating Sperm Donation: Why Requiring Exposed Donation Is Not the Answer
Pi, Vanessa L., Duke Journal of Gender Law & Policy
Each year, more than 25,000 children are born in the United States as the result of artificial insemination, (1) one of the most common forms of assisted reproductive technology (ART). (2) Donated sperm is usually the crucial element in artificial insemination, (3) and most sperm is donated anonymously in one of the two dozen commercial sperm banks in this country. (4) Presently, there is a serious lack of meaningful regulation over and accountability on the part of sperm banks, and the current system has many flaws. These include incomplete medical histories for the donor-conceived child, a risk of consanguinity for the child, and uncertainty about donor privacy. (5) Because of these flaws, some countries and states have, or are considering, legislation that would institute a non-anonymous donation (6) (referred to as "exposed donation" throughout this article) regime. This is a faulty solution because it would cause scarcity of donated sperm and other harms to each of the parties involved in the process. (7) This article argues that the harms of abolishing anonymity in sperm donation far outweigh any potential benefits; thus states should reaffirm donor anonymity and institute the changes proposed in Part V.
Although there is currently little federal regulation of sperm donation, (8) the few states that have laws and regulations apply rules of limited scope. (9) In addition to briefly explaining the history and science behind ART and sperm donation in particular, Part II of this article discusses the inadequate Food and Drug Administration (FDA) regulations, which focus merely on preventing "diseased" sperm from being circulated (10) and do little to control the number of births per donor or facilitate contact between donor and child regarding genetic disorders discovered after insemination. Part II will also present the decentralized state regulation, as well as the guidelines of professional organizations, with the latter effectively being optional and not legally binding.
Due to this lack of meaningful government oversight, there are many risks and concerns associated with the existing sperm donation process. These risks will be presented in Part III. First, the risk of incest and consanguinity (11) are prevalent with anonymous donation (12) since there is no monitoring of the number of live births per donor. Also, a donor cloaked in anonymity is unlikely and unable to contact children conceived with his sperm should he discover he has a serious genetic disorder. (13) Similarly, it is nearly impossible for a parent of a donor-conceived child to obtain additional information from a donor, should the child's medical condition necessitate it, without knowledge of a donor's identity and whereabouts. Donors may also be found to have diminished expectations of privacy, (14) especially because of the ability for donor-conceived children or their parents to investigate a donor's identity using modern genealogy services. (15) Many states are attempting to pass bills calling for more identity disclosure in the medical files of women using artificial insemination, as well as a requirement that clinics offer the option to donate non-anonymously. (16) In fact, the Uniform Parentage Act (UPA) (17) and some state laws already allow access to donor files by court order. (18)
Attention from scholars and the current international trend toward exposed donation (19) may hasten, or at the very least trigger, a similar movement in the United States as the solution to the risks just mentioned. As Part IV will argue, the answer to the call for regulation of sperm donation is not the outright elimination of anonymity. Not only is it logical that requiring exposed donation will attract fewer donors, many countries that have taken this route have experienced varying degrees of scarcity in donated sperm. (20) This may result in an undue burden on procreation, (21) as well as "fertility tourism" (22) which would circumvent any U. …