Family Law

Sperm Count Is Plummeting, Will Sperm-Related Legal Work Skyrocket?

As legislators take the threat to our global sperm supply seriously, expect to see increased regulations on the use of certain chemicals.

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Forget pandemics. Instead, it’s time to worry about worldwide plummeting sperm counts. The end result could mean the end of humankind. But, in the meantime, will the rapid decline in male fertility mean a rise in sperm-related legal work? Are my priorities backward?

I recently learned of the severe drop (over 50%!) in sperm count worldwide from podcast guest Jonathan Waldman, author of Swimming Aimlessly: One Man’s Journey Through Infertility And What We Can All Learn From It. Reiterating the seriousness of the issue, last week, USA Today came out with an article focused on a study showing a greater than 59% decline in sperm count from 1960 to 2015. Although the author gives a nod to the naysayers, it seems pretty clear that this is happening. Aside from our dystopian Children of Men future becoming more probable, what does this mean for the legal profession?

Regulation. The evidence points strongly to chemicals being the culprit. These substances are used to make plastics soft and flexible, which is great. But many are also endocrine disruptors, and seem to have a side effect of massacring the building blocks of human reproduction.

Shanna Swan, epidemiologist and co-author of some pretty convincing studies on the decline, explained to USA Today her recommended approach to deal with the situation. Regulations. In fact, she recommends throwing out the traditional planet-saving three Rs: Reduce, Reuse, Recycle. Instead, she advocates a new three Rs: Remove, Replace, Regulate. I assume only because “litigate” doesn’t start with an R.

As legislators take the threat to our global sperm supply seriously, expect to see increased regulations on the use of certain chemicals. And increased regulation pretty much always means more work for attorneys.

Will Phthalates Be The New Asbestos? As the causation evidence becomes stronger, the backlash seems focused on the producers and commercial users of these reproductively destructive chemicals. Perhaps, like asbestos, a whole new area of litigation will arise to fight for compensation — IVF, after all, isn’t cheap! — to all those now going through infertility treatment, or unable to have children, due to low or no sperm count proximately caused by chemical exposure.

ART Law On The Rise. With New York’s new surrogacy-friendly law, and fertility fraud becoming an increasingly intriguing field, more attorneys are already heeding the call of assisted reproductive technology (ART) law. Many ART attorneys already spend a significant amount of time representing clients in known sperm donation agreements. These agreements navigate and memorialize the understanding between the donor and recipients as to a myriad of issues. Answering questions like, can the sperm samples be used for an unlimited number of children? Can they be further donated to others for conception purposes? And will the parties be required to disclose future-discovered genetic conditions?

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Swan explained that at the current rate, half of men in the most affected areas (such as North America and Europe!), will have no sperm by 2045, and the remaining half will suffer from low counts. That’s a recipe for a DNA diversity disaster, and a lot of sperm donation agreements in the future.

And don’t forget about the embryos. ART attorneys have long been concerned about the million-plus embryos in frozen storage as a result of increased use of in vitro fertilization. Each cryopreserved embryo represents legal risk for the fertility clinic, the storage facility, the gene contributors, and others. However, with the grim projections ahead for the future of our sperm, embryo donation is likely to be on the rise. And those cryopreserved embryos — like the seeds in the Svalbard Global Seed Vault — may become humankind’s last hope for our civilization.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

 

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