COMMENTARY

No More Anonymity for Sperm Donors: Will That Hurt Donations?

Arthur L. Caplan, PhD

Disclosures

June 30, 2022

This transcript has been edited for clarity.

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

I recently had the opportunity to testify in a trial. It was in a rural state, and it involved a doctor who had been taking care of a number of female patients as their ob/gyn probably 25 years ago. Two women, just for fun, signed up for one of the genetic testing company tests — the 23andMe ancestry-type tests — and a name kept popping up as being 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 husbands of these women and he was going to match them for traits.

In fact, duplicitously, he used himself. He didn't match for traits. He didn't look like the husbands of these women. He not only used his own sperm to make them, but they weren't even aware until the genetic testing popped up that they were related or that their offspring might wind up getting married to one another. They had no idea that he had lied to them.

We see these cases pop up. One occurred in Colorado, where the legislature has had enough of this and they just passed a law that says there will be no anonymity for anyone who donates sperm. A longstanding practice in healthcare has been that if you're a sperm donor, you can say, "I want to do that, but I want my identity kept secret." Normally, you get a small amount of money in payment, but you always historically have been given the promise that if you participate, say, as a medical student, no one's going to know.

That principle of anonymity has been under constant attack in the adoption area. Many children have said they need to know who their biological parents are, partly because psychologically, emotionally, that matters to them. Also, for health reasons, they would like to know if they're at risk for any diseases that they weren't aware of.

In every state, court after court has said those are important enough reasons to break down contracts about anonymity with respect to adoption, and with respect to who the mother might've been, or the father, or both.

Many people have found out where their adoptive parents were. Some have reached out to them but were not always received happily. Some have reached out and gotten a great reaction that's welcoming, and very emotional bonding has taken place. The responses seem to be all over the place.

That's going to become the world of sperm donation. People are going to be able to go to court and say, "If you have records at that sperm clinic, I want to know who my sperm donor was." Most clinics do keep records. They could trace back who it was that made the donation and how many times the sample was used. Ultimately, if the offspring pushes hard enough, they're going to win the suit to get information that is important to them about emotion or health. I don't think it's going to work, and it's certainly not going to work anymore in Colorado, where they now said anonymity is out the window to protect your identity.

I think Colorado also acted wisely in limiting the number of times you can use a sperm donor. In a rural or small state, you could actually have somebody using the same sperm donor up to 100 times. That 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 that's somebody who people want to choose because of their appearance, achievement, or whatever reason they might have for going back again and again to a particular donor.

Also, it's very important to standardize screening criteria to make sure that there is a list of what genetic testing can reveal, and then share that with the couple who want to use a sperm donor so they can decide whether or not they want to take a risk factor for fragile X syndrome or any other genetic condition that might be out there.

The days of anonymity are fast leaving us. I think other states will imitate Colorado. I'm not opposed to that, but it may have a chilling effect on who's willing to become a sperm donor. It used to be that you could get volunteers literally out of the medical student pool, maybe out of the college or university pool nearby. Now, you should have to tell them that you can't guarantee their anonymity.

Some of them are going to be thinking, I don't want a visit 20 years from now. I don't want somebody holding me accountable for expenses, costs, or monetary debts they say I have to help with because I'm their biological parent. We could see sperm donation as an area where we start to see shortages because anonymity is not going to exist anymore.

It's a tough tradeoff. It's one I support, but we're going to have to think harder about what we can do to make sure that couples who want to use sperm donation don't just go on the private side of things, find their own donors, don't screen them, don't warn them, don't consent them, and then use them as their sperm donors, staying away from the clinics where they can get safer, screened gametes.

Let me be clear: The Colorado law is forward-looking. It's not really something you could use to do something about a doctor who deceived patients 25 years ago. What they're saying is, starting a few years from now, anonymity is going to be abolished.

Whatever has happened in the past, that's probably going to be litigated in court. Going forward, I think other states will probably follow Colorado's lead.

I'm Art Caplan at the NYU School of Medicine, Division of Medical Ethics. Thanks 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 as well as a frequent commentator in the media on bioethical issues.

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