More anonymity for sperm donors: will it harm donations?

This transcript has been edited for clarity.

Hi. I’m Art Caplan from the NYU Grossman School of Medicine’s Division of Medical Ethics.

I recently had the opportunity to testify in a trial. It was in a rural state and it was about a doctor who cared for a number of patients as an obstetrician-gynecologist probably 25 years ago. Two women, just for fun, signed up for one of the genetic testing company’s tests – the 23andMe ancestry type tests – and one name kept popping up as a relative of theirs.

It turned out that name was the doctor they were seeing, and many years ago he had been involved in sperm donation. He had told the women that he was going to use an anonymous donor, a medical student, who looked like the women’s husbands and that he was going to match traits with them.

In fact, out of duplicity, he used himself. It didn’t match the features. He did not look like the husbands of these women. He not only used his own sperm to make them, but they didn’t even know until genetic testing showed that they were related or that their offspring might end up getting married. They had no idea he had lied to them.

We see these cases appear. One happened in Colorado, where the legislature has had enough and just passed a law that says there will be no anonymity for anyone who donates sperm. A long-standing practice in health care is that if you are a sperm donor, you can say, “I want to do this, but I want my identity to remain secret.” Normally you receive a small amount of money as payment, but historically you have always been promised that if you participate, say, as a medical student, no one will know.

This principle of anonymity has been constantly attacked in the field of adoption. Many children said they needed to know who their biological parents were, partly because psychologically, emotionally, it mattered to them. In addition, for health reasons, they would like to know if they are at risk of contracting diseases of which they were not aware.

In every state, court after court has declared that these are strong enough grounds to break contracts on anonymity with respect to adoption, and with respect to who might have been the mother, or the father, or the of them.

Many people found out where their adoptive parents were. Some have contacted them but have not always been welcomed. Some have reached out and gotten a great reaction that is welcoming, and some very emotional bonding has taken place. The answers seem to be everywhere.

This will become the world of sperm donation. People are going to be able to go to court and say, “If you have any records at that sperm clinic, I want to know who my sperm donor was. Most clinics keep records. They could trace who made the donation and how many times the sample was used. Ultimately, if the offspring pushes hard enough, they will win the suit for important information for them about emotions or health. I don’t think that will work, and it certainly won’t work anymore in Colorado, where they now say anonymity is prohibited to protect your identity.

I think Colorado has also been wise in limiting the number of times you can use a sperm donor. In a rural or small state, you might actually have someone using the same sperm donor up to 100 times. This could lead to accidental incest, other health issues, or other emotional issues. You don’t want to have unlimited use of the same sperm donor, even if it’s someone people want to choose because of their looks, their accomplishments, or whatever other reason they might have for come back again and again to a particular donor.

Also, it is very important to standardize screening criteria to ensure that there is a list of what genetic testing can reveal, and then share it with the couple who wish to use a sperm donor so that they can decide whether or not they want to take a risk factor for Fragile X syndrome or any other genetic disease that might exist.

The days of anonymity are quickly leaving us. I think other states will follow Colorado. I’m not against it, but it can have a chilling effect on who is willing to become a sperm donor. It used to be that you could literally bring volunteers out of the pool of medical students, perhaps from the pool of nearby colleges or universities. Now you should tell them that you cannot guarantee their anonymity.

Some of them will think, I don’t want a visit in 20 years. I don’t want anyone to hold me responsible for any expenses, costs, or monetary debts they say I have to help because I am their birth parent. We might see sperm donation as an area where we are starting to see shortages because anonymity will no longer exist.

It is a difficult compromise. That’s the one I support, but we’re going to have to think more about what we can do to make sure that couples who want to use sperm donation don’t just stay on the private side of things, find their own donors, don’t test them, don’t warn them, don’t consent to them, then use them as sperm donors, staying away from clinics where they can get safer, tested gametes.

Let’s be clear: Colorado law is forward-looking. It’s not really something you could use to do something about a doctor who cheated on patients 25 years ago. What they are saying is that in a few years, anonymity will be abolished.

Whatever happened in the past is likely to come to trial. In the future, I think other states will likely follow Colorado’s lead.

I’m Art Caplan at NYU School of Medicine, Division of Medical Ethics. Thank you for watching.

Arthur L. Caplan, PhD, is director of the Division of Medical Ethics at New York University Langone Medical Center and School of Medicine. He is the author or editor of 35 books and 750 peer-reviewed articles and a frequent media commentator on bioethical issues.

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