I Want To Put A Baby In You: Flawed Sperm

What happens when a sperm donor lies about his background? What's your legal recourse?

happy spermBefore diving into the latest reproductive disaster, I want to recognize that this week, April 24 through April 30, 2016, is National Infertility Awareness Week (hashtag #NIAW). This is a public health and awareness campaign to help people understand the disease of infertility. This year’s theme is “Start Asking,” or, hashtag #StartAsking. The campaign is meant to encourage a public dialogue about infertility. And, possibly, to get people to use more hashtags.

Now, we move to this week’s latest ART controversy. The latest case comes in the form of a sperm donor who lied on his profile about his 160 IQ, his neuroscience PhD program, and his almost perfect medical history. (He did admit, in a moment of honesty, that his father’s side has a history of colorblindness.) After using the donor’s sperm and having a child, Canadian couple Angela Collins and Elizabeth Hanson were appalled to learn that “Donor 9623” was a far cry from the dream profile they selected.

Another woman discovered the true name of the donor in correspondence from the sperm bank company, Xytex Corp. In the correspondence, Xytex accidentally used the real name of the donor. A quick internet search revealed that Donor 9623 had, in fact, dropped out of undergraduate school, possessed a felony criminal record, and had a history of schizophrenia. And his sperm bank profile picture had been doctored. (In all fairness though, we’re all guilty of doctoring our photos before posting them online.)

Collins and Hanson sued Xytex. First, they sued in Georgia. But the suit was ultimately dismissed because claims rooted in a theory of “wrongful birth” are not recognized in the state. Subsequently, Collins and Hanson — as well as other couples who utilized Xytex’s services and Donor 9623 — brought suit against Xytex in Canada. In the suit, they have requested millions of dollars to use for monitoring and treatment of any children who inherited Donor 9623’s genetic flaws.

Xytex has vigorously defended itself, claiming that it followed industry standards for testing. It also argues that its clients were fully informed that Xytex was relying on the veracity of the information provided by donors. Xytex says that it tells every patient that it only tests sperm to make sure it complies with FDA regulations about communicable diseases. Collins and Hanson, however, dispute these representations regarding donor screening.

The Industry Standard is Terrible. Unfortunately for Collins and Hanson, Xytex is probably right that it followed the industry standard. Sperm, egg, and embryo donation banks and agencies continue to operate — with a couple of exceptions such as FDA testing — in an unregulated area. Sperm banks are not required by statutes to confirm the information provided by their donors. And although a few banks may go above and beyond, it is not currently regular practice to take basic measures to confirm donor-supplied information.

Is Regulation the Answer? One possible path to address these cases is to implement regulations that require sperm banks to be held to a certain standard of care when screening their donor applicants. In the present case, a basic Google search would likely have revealed red flags about Donor 9623. But how high should the bar be?

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Most states require potential adoptive parents to undergo extensive screening. That screening might include state and federal background checks, home studies, and even letters of recommendations. Should sperm donors and/or recipients of donated genetic material be held to these standards? Put simply, this is a balancing question. With every additional layer of scrutiny, the cost of the process rises. For adoption, these measures have caused costs to skyrocket.

Known Donors. What if intended parents had access to information about the sperm donor? That way, they could do their own research on the donor.

One way of doing this is to encourage intended parents to use a “known donor.” With a donor known to the recipients, the recipients have it within their own control to run background checks and investigate the veracity of their donor’s claims. One fear that permeates the industry, however, is that known donors may try to assert parental rights to the child, or may be forced to pay child support.

Middle Ground — Asymmetrical Anonymity. What if banks and agencies gave recipients full information about a donor they want to use, letting the recipients research the donor themselves, but not reveal the identity of the recipients to the donor? Some donors may want to remain anonymous, but it’s one option for moving the power to research a donor into the hands of the recipients. And, in any event, with technological advancements in genetic testing and information accessible on the internet, truly anonymous donors (whether the know it or not) are rare.

Because the Xytex lawsuit is pending in Canada, the result may not tell us much about what duty that sperm banks owe to their customers in the United States. But in the future, plaintiffs may argue that sperm banks have at least a basic obligation to Google the names of the donors making “deposits” in their banks. On the other hand, maybe sperm banks can successfully put that burden on the intended parents themselves.

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Clearly, there is a problem. Maybe cases like Xytex’s will convince quality banks to emerge that tout their strict background checks and confirmation of their donor profiles. We can always hope the industry will improve on its own. On the other hand, the stakes may be too high to rely on it.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.