Can Sperm Banks Regulate Themselves?

The industry that has developed around assisted reproduction is a frequent topic here, often a controversial one.   One particular arm of the industry–sperm banks and more generally the use of sperm from sperm banks–has been a frequent focus.   There are undoubtedly many points of disagreement here.   For instance, some suggest that no one should use third-party gametes.  Others suggest that the gamete provider, by virtue of the genetic link that will always exist between provider and offspring, should always be a legal parent.

What this may hide is that there is also a fairly wide area of agreement.   I’m going to write about one in particular today.   There have been a number of instances–some fictional (books and movies) and some real–where men have produced dozens or scores of offspring.    People who use the sperm are in general unaware of the risk that this might happen to them.   This does not seem to me to be a good thing.

Now one way to address this problem would be to have some centralized regulation with a fixed upper limit on number of offspring or number of families using the particular provider.   Some countries do this.

But the prospects for national regulation in the US are, frankly, slim.   In general we have a pretty wild-west/free market system and there’s far more concern in the political sphere about over-regulation than about under regulation.   I don’t mean one cannot try for this, I just mean to suggest that the prospect of actually getting change in a short time is not great.

As I think I’ve said in the past, seeking to move the sperm banks to self-regulate is probably a more fruitful course of action.  After all, if people who support the general practice of using sperm banks (as I do) are supportive, then it’s a lot harder to shrug off.

So here is just such an effort.   There is a wonderfully engaged scholar I’ve written about in the past–her name is Rene Almeling.    She recently had an op-ed in the New York Times.   That’s one form of advocacy.    (I wrote about the op-ed as part of the most recent posting on sperm banks.)

But now Professor Almeling has taken things another step.  This open letter to the sperm banks is from her website.    She has some specific proposals for what she’d like them to do.   I think they are well worth considering.

Basically there are three things she suggest the sperm banks do:

1) Post your bank’s policy on the maximum number of children allowed per donor.

2) Describe the methods your bank uses to track the number of children per donor.

3) For each donor listed on your website, post the number of children born from that donor’s sperm.

(The letter expands a bit on each of these.)

I think it is an intriguing and potentially powerful proposal.   Notice that it doesn’t actually tell the sperm banks what the can/cannot do in terms of the use of the providers sperm.  If a bank wants to set its at fifty children, the suggested policy doesn’t tell it not to do that.

Instead the proposal is aimed an informing consumers about whatever choices the bank has made.  If there is a limit, the bank needs to say what it is.   Then it needs to say how it actually enforces the limit–because we all know that a policy on a piece of paper can be pretty worthless without some sort of actual practice behind it.   And then it has to provide specific information about how many offspring there are for each provider.

What’s the point of requiring the information to be posted?   The point is to give the people who will be using the sperm the chance to make an intelligent choice.   Do they want to go to a sperm bank with no particular limits on number of offspring?  Or a sperm bank that has a fine limit on paper but no way of making the limit real?   And what better way to test out effectiveness of policy and practice by looking at results.

I think there’s a real chance that if sperm banks posted information like this there would be substantial pressure on them to have real and moderate limits.  But the pressure would arise not from the gaze of a regulatory agency, buy from the operation of market choices.   Given the information, consumers will choose, and my guess is there will be a strong preference for real and modest limits.

One reason I think this approach is more likely to yield results is, as noted above, we have a general cultural preference for the free market here.   Rather than fly in the face of that preference, this proposal builds upon it.

I don’t mean to suggest I’m a general fan of reliance on market forces.  I think there are so many ways that can fail.   And of course, the market doesn’t always function benignly.  But in this particular instance, it seems like it might be worth trying to make them work towards a better end.

Then again, will any of the clinics respond to the open letter at all?  Stay tuned.

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13 responses to “Can Sperm Banks Regulate Themselves?

  1. they’ll only do that if their customers insist. i also think you are overlooking one aspect, that sper bnks are in some ways akin to health care estblishments and health care is an xception in that it is already highly regulated.

    • There’s almost no regulation of gamete donation though except to prevent STI transmission from donor to recipient. In the Brittany Johnson case, CCB even claimed they weren’t a health care provider.

      caselaw.findlaw.com/data2/californiastatecases/B155896.DOC

      • the court declared that ccb was a healthcare provider, they won on other grounds. but i understand that ccb has cleaned up theit act a bit since that lawsuit, so it proves that lawsuits are the way to gp. orr maybe their just more careful not to get caught?

    • Probably so–which I part of why I wanted to make sure people knew the proposal was out there. I think most sperm banks now offer donors whose identity can be provided to kids when the kids turn a particular age. That’s because of consumer demand, right? So this can work.

      It’s sort of true about highly regulated. Though I’m not sure sperm banks really are seen as health care establishments. This might be a place where the sperm/egg difference is salient.

      • actually identity availability is a crucial aspect to regulating the other aspects of sperm donation as well. as long as anonymity is assured, sperm banks are under no pressure to stick to any sort of policy that would diminish their profits. they can tell the families whatever they want, but why should they stick with it if no one can ever find out? now that sperm banks know that many offpsring will find out the identity, whether by contract with the sperm bank or other means, they have to stick with what they promised.

        • Personal accountability for ones own offspring as a parent named on their offspring’s birth record would do wonders to keep offspring numbers down to a number that the relinquishing biological parent felt comfortable with and would provide their relinquished children with the same protections of having to be adopted in court with the approval by a judge rather than black market adopted in a private contract with no written record of the relinquishing parent’s identity or consent to the adoption.

          • I have no doubt that making sperm providers personally liable for the support of their genetic offspring would reduce the number of willing sperm providers. I understand you think this is a good thing. But I don’t. I think there is value in men providing sperm so that other people can have planned families. That’s one of those basic things we disagree about, I know. But I want to acknowledge that the logic you offer here is sound.

            Also implicit in your suggestion is that a man would be a legal parent simply by virtue of his genetic connection to the child–that’s why you’d need to relinquish a child as with adoption, right? And again, here we disagree.

        • The practical reality that identity cannot be guaranteed certainly changes practice. And since the practical reality is already with us, perhaps the law might follow along with a little less struggle. One never knows.

  2. It’s an intriguing idea but likely naive in belief that it would work. Nor does it address the real problem of the “donor” going to multiple places. They could also have a “problem” with their algorithm that stops updating the stats at a certain number to blame it on – if found out.

    The way it is going now – the industry should be looking to the future and creating an app like there is for Iceland, so that you can check to see how related you are to an individual before you start dating them. Except for the very high percentage of folks who don’t know – they are out of luck…

    Julie, do you know if any of these types of places have educated the “donors” about the need to update family health history, and a process to ensure timely disclosure?

    • You’d have to have some real tracking to deal with that travelling donor problem, but I think that can be done. And I think you can that this process of consumer demand driving policy has worked in that many sperm banks now offer donors with identifying information available to the child later–because people want that.

      I’ve talked to some people from sperm banks who are well aware of the donor education process. No doubt it varies. But some take it really seriously. See, for example, http://www.thespermbankofca.org/ Of course, it might be significant that they are a not-for-profit……

    • Places like the UK have a national register and reporting systems which get round the ‘donations at multiple locations’ issue, given that the donor has to have proper ID. It could be done, but obv in the US is significantly more complicated by the lack of willingness to accept legislation from central government.

      Of course, donors who don’t like that are likely to head for the internet in any case.

      • The internet does give people ways to outflank all sorts of systems. And varying global regimes (the US being a bit like the old wild west) exacerbates this as well. It’s hard to see how this will change, though, in any reasonable time frame. We’re not likely to obtain any sort of global consensus in my lifetime, I don’t think.

  3. I would like to talk about the concepts of bodily autonomy and personal responsibility. Number 1 a donor is just a regular human being and they have a right to have as many offspring as they want. We don’t want to impose any restrictions on bodily autonomy or human reproductive behavior. The existing system of holding people accountable as the parents of their own offspring works relatively well in keeping numbers down below 100 per person.

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