I know it’s been a while since I’ve put up a new post. What can I say? I’ve been less than diligent. To get back on a better track I thought I’d offer this little story. A man in Israel donated sperm. A woman, using that sperm, conceived a child. That child is now 2.
The woman, planning to have a second child and wanting that second child to be a full genetic sibling, purchased five extra units of sperm from the same donor via the sperm bank. I gather these have not been used yet.
Meanwhile the donor has had a change of heart. He doesn’t want to be a donor anymore and regrets his past actions. He contacted the sperm bank and asked it to destroy all existing samples of his sperm.
I think the sperm bank complied (though it isn’t clearly stated) but what about the five vials sold to the woman? These no longer belong to the sperm bank. However, I would guess that they are still stored at the sperm bank and it looks like the sperm bank denied her access to it. The health ministry ruled in the donor’s favor (which means it ruled the sample should be destroyed) and the woman appealed to the Israeli Supreme Court.
This scenario makes me wonder about two things: First, does the man have the right to have the sperm bank destroy the vials of his sperm they haven’t sold yet? Second, what about the vials purchased by the woman?
If you think of this as a propery question, it’s pretty easy. The sperm doesn’t belong to the man anymore. As the doctor quoted in the article says, he sold it–was paid for it. He can no more change his mind than if he’d sold a painting he did or some extra cans of paint for his house. Perhaps he can offer to buy them back–but he’s got to right to do so.
But if you look back through the blog you’ll see that we don’t generally construct the transaction where a man provides sperm for use in ART as a sale of a product. That’s one reason why some insist on calling him a “donor.” The money that is paid to him is payment for a product–it’s some compensation for the time and effort the donor has devoted to providing the sperm.
Even so, the sperm isn’t his anymore. Under this view, I think he’s given it away. And I would expect that the contract prepared says that he isn’t going to get it back.
You could, however, decide that contracts should say that–at least as far as the sperm banks go. Perhaps we ought to provide that a sperm provider has a right to retrieve (or have destroyed) all samples of his genetic material that are still at the sperm bank. This would allow a man to change his mind, at least to some degree.
But it doesn’t answer the second question–the one about the sperm in possession of the woman. Notice (and this might be important) that in Israel he is a necessarily and permanently anonymous donor. I mean, you could always try to use DNA testing etc. to track him down, but you are not supposed to do that and the law certainly doesn’t encourage it.
Anyway, she did buy the sperm, I think. This is more like a commercial transaction. And I don’t quite see how the bank can now insist that it gets to destroy the sperm. After all, once it was hers she could have taken it with her and stored it somewhere else (and perhaps she should have). It’s hers.
Again, I suppose you could structure things differently to try to accommodate men who change their minds. You could refuse to sell a woman additional sperm–insisting she only buy it as she was planning to use it. That way you wouldn’t face this situation because all his sperm would remain the property of the sperm bank until it was used.
Now I know that some of you are dead-set against the whole third-party sperm thing and that the effort to insure anonymity here will strike others of you as wrong-headed. From those perspectives I think it might be easier to reach the conclusion that the sperm should be destroyed.
For all that I think that the sperm isn’t the man’s anymore, maybe it should be destroyed. I’m not particularly impressed with the interests asserted by the woman because I think we put too much weight on genetics as it is. She can find another donor for a second child. But at the very least, she should be entitled to her money back. The problem (for me is) I’m not sure I can reach this result (sperm destroyed, money returned) on any particularly principled basis.