THE PRICE OF SPERM: AN ECONOMIC ANALYSIS OF THE CURRENT
REGULATIONS SURROUNDING THE GAMETE DONATION INDUSTRY
Anetta Pietrzak*
INTRODUCTION
In 2006, The New York Times published an article illustrating the risks
associated with the current United States artificial insemination process. That year,
five Michigan children were diagnosed with severe congenital neutropenia (SCN),
a rare genetic blood disease that increases the risk of developing leukemia later in
life.1 Because SCN affects only one in five million children, the specialist who
diagnosed the Michigan children “suspected that something strange was going on”
and soon thereafter discovered that all of the five children had the same father—
Donor F827.2 The specialist further theorized that this donor must have carried the
defective gene in his sperm, but he unfortunately could not test this hypothesis
because Donor F827 had moved, and self-imposed policy prevented International
Cryogenics from testing the sperm without his permission.3 Although International
Cryogenics disposed of the remaining sperm after learning of the children’s
condition, Donor F827 fathered eleven other children, whom the sperm bank
refused to notify “reason[ing] that, even if other children had developed the disease
their families would already know it.”4
Five years later, The New York Times published another article about the U.S.
artificial insemination process.5 It reported the story of Cynthia Daily of
Washington who used anonymously donated sperm to conceive a child in 2004.6
Although Daily’s son (as of September 2011) has not inherited any known genetic
illnesses, he is one of 150 children fathered by the same donor and part of the
largest known group of donor siblings within the United States.7 Daily discovered
this when she searched an online registry for children fathered by the same donor
and then helped create an online group to track her son’s half-brothers and half *
© 2012 Anetta Pietrzak, J.D. Candidate, S.J. Quinney College of Law, 2013. The
author would like to thank Professors Teneille Brown, Laura Kessler, and Clifford Rosky
and colleagues Karina Sargsian and Zaven Sargsian for their thoughtful and greatly
appreciated insight and comments.
1
Denise Grady, As the Use of Donor Sperm Increases, Secrecy Can be a Health
Hazard, N.Y. TIMES (June 6, 2006), available at http://www.nytimes.com/2006/06/
06/health/06opin.html.
2
Id.
3
Id.
4
Id.
5
Jacqueline Mroz, One Sperm Donor, 150 Offspring, N.Y. TIMES (Sept. 5, 2011),
available at http://www.nytimes.com/2011/09/06/health/ 06donor.html?pagewanted=all.
6
Id.
7
Id.
121
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sisters.8 Since then, many other groups of donor siblings have been discovered,
sometimes with fifty or more half-siblings. 9 This prevalence of half-siblings has
raised concerns among parents, donors, and medical experts about the increased
odds of accidental incest and the spread of rare diseases through population groups
living close to sperm banks.10
Although the Michigan and Daily cases have brought negative attention to the
gamete donation industry, they have also helped increase awareness of the current
problems with the practice. More importantly, they demonstrate how the
anonymous sperm donation industry is governed by laissez-faire economics.11
Since sperm banking began in the 1970s with cryopreservation (technology
allowing sperm to be frozen for long periods of time), the industry has mostly been
self-regulated with fertility centers only having to report their success to the
Centers for Disease Control and abide by basic laws forbidding malpractice and
fraud.12 Sperm banks preserving anonymous donations, the focus of this Note, are
subject to Food and Drug Administration (FDA) regulations that focus primarily
on the screening of donors and record-keeping to prevent the spread of infectious
diseases.13 State laws mainly address parental rights to children conceived through
artificial insemination.14 Although professional organizations such as the American
Society for Reproductive Medicine and the American Fertility Society emphasize
the importance of genetic testing and limiting the number of pregnancies achieved
using the same sperm, their guidelines are only recommendations.15 As a result,
most U.S. sperm banks establish their own policies, unaffected by any state or
federal regulation.16
This Note provides an overview and analysis of the U.S. federal and state
laws and institutional policies regulating the anonymous sperm donation industry
8
Id.
Id.
10
Id.
11
DEBORA L. SPAR, THE BABY BUSINESS 125 (2006); Vanessa L. Pi, Note, Regulating
Sperm Donation: Why Requiring Exposed Donation Is Not the Answer, 16 DUKE J.
GENDER L. & POL’Y 379, 379 (2009).
12
Fertility Clinic Success Rate and Certification Act, 42 U.S.C. § 263a-1 (1992);
SPAR, supra note 11, at 36, 51.
13
See Sunni Yuen, An Information Privacy Approach to Regulating the Middlemen in
the Lucrative Gametes Market, 29 U. PA. J. INT’L L. 527, 554 (2007) (quoting 21 C.F.R. §
1271.1 (2005)).
14
See, e.g., MINN. STAT. ANN. § 257.56(2) (West 2011); MO. ANN. STAT. §
210.824(2) (West 2011); MONT. CODE ANN. § 40-6-106(2) (2011).
15
Pi, supra note 11, at 387–88 (citing American Fertility Society, New Guidelines for
the Use of Sperm Donor Insemination: 1990, 53 FERTILITY & STERILITY S1, S8 (Supp. 1
1990)); AM. ASS’N OF TISSUE BANKS, STANDARDS FOR TISSUE BANKING 21–32 (10th ed.
2002) (Richard J. Kagan, M.D., ed., 1998) [hereinafter AATB Guidelines].
16
Omar Hasan, Amber Johnson, Shira Lipton & Rachel Turow, Infertility Treatment:
An Overview, NEW WAYS OF MAKING BABIES: THE BIOLOGY, ETHICS, AND POLICY OF
INFERTILITY, http://www.stanford.edu/class/siw198q/websites/reprotech/New%20Ways%
20of%20Making%20Babies/Outline.htm (last visited Jan. 15, 2012).
9
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THE PRICE OF SPERM
123
and their relation to laissez-faire economics. Part I of this Note briefly chronicles
the history of assisted-reproductive technologies and provides an overview of the
current federal, state, professional, and institutional policies and regulations in
place. Part II describes the economic implications of the sperm donation industry
and how sperm banks have successfully commoditized genetic material to benefit
both donors and recipients. Part III recommends that, in order to establish
predictability for both donors and recipients, the U.S. government should establish
a clear set of property rights and regulations for the trade of human reproductive
material. Federal and state legal reforms that misunderstand or fail to consider
market forces and property rights adequately addressing the gamete donation
industry will be ineffective. Comprehensive legal reform is needed and the federal
government should take the opportunity to advance new legislation that properly
addresses these problems.
I. BACKGROUND: THE REGULATIONS GOVERNING
ANONYMOUS SPERM DONATION
Assisted-reproductive technologies (ART) are scientific means of conception
not achieved through sexual intercourse.17 They are used to assist individuals and
couples unable to conceive due to infertility, choice of partner (i.e., same-sex), or
lack of partner (single individuals wishing to conceive).18 Sperm donation is
crucial to many of these technologies such as artificial insemination, in vitro
fertilization, and intracytoplasmic sperm injection.19
It is estimated that approximately 30,000 to 50,000 children are born in the
U.S. as a result of donated sperm.20 The use of ART is only expected to continue
increasing as more same-sex couples and single individuals pursue parenthood and
couples delay having children until later in life.21 Although exposed sperm
donation practices do exist in the U.S., most sperm is donated anonymously
through a sperm bank or clinic.22 While many anonymous sperm donors are
17
American Bar Association Model Act Governing Assisted Reproductive
Technology, 42 FAM. L.Q. 171, 175 (2008) [hereinafter ABA Model Act].
18
Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible
Harms, 23 BERKELEY J. GENDER L. & JUST. 18, 24–25 (2008); R.S. Sidhu et al., Reasons
for Rejecting Sperm Donors from a Sperm Bank Program, 14(6) J. ASSISTED
REPRODUCTION & GENETICS 354, 354 (1997) (defining infertility as “the inability to
conceive after 1 year of unprotected intercourse”).
19
ABA Model Act, supra note 17, at 176–77; Catherine A. Clements, What About the
Children? A Call for Regulation of Assisted Reproductive Technology, 84 IND. L.J. 331,
333 (2009); Crystal Liu, Restricting Access to Infertility Services: What Is a Justified
Limitation on Reproductive Freedom?, 10 MINN. J. L. SCI. & TECH. 291, 295 (2009).
20
Jeff Stryker, Regulation or Free Markets? An Uncomfortable Question for Sperm
Banks, SCIENCE PROGRESS (Nov. 7, 2007), http://scienceprogress.org/2007/11/regulationor-free-markets.
21
Id.
22
Pi, supra note 11, at 379 (“Exposed donation” refers to fertility practices where the
donor’s identity is known by the recipient.).
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motivated by monetary compensation, some choose to donate for altruistic reasons
to assist infertile couples.23
A. Federal Regulations Governing Anonymous Sperm Donation
Currently, the FDA provides the only federal means to regulate anonymous
sperm donations. In March 1997, the FDA announced that it would create a
regulatory scheme for “cellular and tissue-based products” that would include
donated reproductive tissue (DRT).24 In January 2001, the FDA released the
Human Tissue Regulations requiring all DRT institutions to register with the FDA
and list their physical and mailing addresses, functions, and type of tissue(s) in
maintenance.25 On May 25, 2005, the FDA’s Donor Eligibility Rule went into
effect, focusing on “donor screening, quality processing, and record keeping [with
the] . . . goal [of] keeping infectious tissue out of circulation.”26
Under the Donor Eligibility Rule, both anonymous and non-anonymous
donors must undergo a physical examination and medical history interview that
includes an assessment of their physical and “relevant social behavior[al]”
histories.27 The rule lists twenty-nine risk factors, including men who have had sex
with other men within the last five years, persons who have injected drugs for nonmedical reasons within the past five years, and persons who have been exposed to
known or suspected HIV and/or HIV-infected blood in the preceding twelve
months.28 These factors are to be considered in assessing a potential donor’s
eligibility.29 For anonymous donations, the rule states that donors must be tested
for a wide array of infectious diseases such as HIV-1, HIV-2, hepatitis B and C,
gonorrhea, and chlamydia while their sperm is frozen and stored for six months
before being certified as “disease-free.”30 A donor whose sperm tests positive or
who is “identified as having [a] risk factor for or clinical evidence of any” of the
diseases listed in the Human Tissue Regulations is deemed ineligible to donate.31 It
23
Allison Brown, Money Shots: College Students Profit, Help Infertile Couples by
Donating Their Sperm and Eggs, THE DAILY FREE PRESS (Jan. 13, 2004),
http://dailyfreepress.com/2004/01/13/money-shots-college-students-profit-help-infertilecouples-by-donating-their-sperm-and-eggs/.
24
See generally Proposed Approach to Regulation of Cellular and Tissue-Based
Products: Availability and Public Meeting, 62 Fed. Reg. 9721 (Mar. 4, 1997).
25
Human Cells, Tissues, and Cellular and Tissue-Based Products: Establishment of
Registration and Listing, 66 Fed. Reg. 5447, 5448 (Jan. 19, 2001); 21 C.F.R. § 1271.22
(requiring registration using Form 33556).
26
See Yuen, supra note 13, at 554 (quoting 21 C.F.R. § 1271.1 (2005)).
27
See Pi, supra note 11, at 383; 21 C.F.R. § 1271.3(n) (2007).
28
21 C.F.R. § 1271.75 (2006).
29
Id.
30
Id. §§ 1271.3(r), 1271.50, 1271.75, 1271.80, 1271.85 (2005).
31
Id. § 1271.90(a); Sperm Donation: Anonymous vs. Known Donation,
FERTILITYPROREGISTRY.COM (last visited Nov. 28, 2011), http://www.fertilityproregistry.
com/article/sperm-donation-anonymous-vs-known-donation.html (stating that if a serious
disease is identified, the donor will be contacted).
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125
is important to note that while the Donor Eligibility Rule requires extensive
assessment of each donor’s medical history and current state of health related to
infectious diseases, it does not require any analysis or inquiry into possible genetic
abnormalities.32
In addition to the Donor Eligibility Rule, the FDA’s Good Tissue Practice
requirements include periodic inspections of fertility institutions to evaluate
compliance with the Donor Eligibility Rule and record-keeping standards.33 This
record-keeping, however, does not require that sperm banks track donors’ health,
disclose information to donor-conceived children, or even place limits on the
number of births resulting from one donor’s sperm.34
B. State Regulations Governing Anonymous Sperm Donation
Most state laws concerning anonymous sperm donation consider paternity
issues such as voluntary acknowledgement, genetic testing to determine paternity,
and other parentage-related concerns. These paternity issues are largely covered by
the Uniform Parentage Act (UPA) which, as amended in 2000 and 2002, takes into
account new genetic identification technology and new scientific advances
including ART.35 The 2002 UPA, however, has been adopted by only some states.
The remaining states mimic the original 1973 version of the UPA, incorporate
relevant provisions of the 2002 UPA into their own statutes, create their own
gamete donation provisions, or completely lack these provisions.36 Only two
states—New York and Ohio—mandate that DRT institutions screen and test sperm
for genetic risk factors.37
In general, the 1973 version of the UPA states that when a child is conceived
through artificial insemination using a donor’s sperm, the married woman’s
husband is considered the natural father.38 This version of the UPA, however, only
32
21 C.F.R. § 1271.3(n).
Id. § 1271.180.
34
ETHEL SLOAN, BIOLOGY OF WOMEN 401 (2001); Stryker, supra note 20.
35
See generally UNIF. PARENTAGE ACT (2002), available at http://www.law.upenn.
edu/bll/archives/ulc/upa/final2002.htm.
36
MINN. STAT. ANN. § 257.56(2) (West 2011); MO. ANN. STAT. § 210.824(2) (West
2011); MONT. CODE ANN. § 40-6-106(2) (2011); NEV. REV. STAT. ANN. § 126.061(2)
(LexisNexis Supp. 2011). For those that mimic see: MINN. STAT. § 257.62(5)(c) (2011)
(stating that a sperm donor cannot claim to be a child’s biological or legal parent); OHIO
REV. CODE ANN. § 3111.97(D) (LexisNexis 2012) (stating that donor is not a parent and
has no parental rights or responsibilities); VA. CODE ANN. § 20-158(A)(3) (2011) (Virginia
also establishes that “a donor is not the parent of a child conceived through assisted
conception.”); COLO. REV. STAT. ANN. § 19-4-106(1), (2) (West 2011) (Colorado’s statute
is not modeled after the UPA but states that records may be obtained upon a court order
showing good cause).
37
OHIO REV. CODE ANN. § 3111.91(B)(1)(a)–(b) (2012); N.Y. COMP. CODES R. &
REGS. tit 10, 52-8.5(b) (2011).
38
UNIF. PARENTAGE ACT § 5 (1973), available at http://www.law.upenn.edu/bll/
archives/ulc/fnact99/1990s/upa7390.htm.
33
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applies to situations where the child’s mother is legally married and where the
artificial insemination procedure was performed by a licensed physician.39 Some
states such as Minnesota, Missouri, Montana, and Nevada40 have adopted the
UPA’s original language while others such as California, Illinois, New Jersey, and
Wisconsin have made minor changes to the provisions including removal of the
word “married” to grant more rights to unmarried women seeking to conceive a
child and further protect sperm donors.41 Other states such as New Hampshire,
Ohio, and Oregon have completely adopted their own gamete donation statutes
having the same effect as the 1973 UPA.42
While the 1973 UPA exempts most sperm donors from parental liability, the
2002 version exempts all sperm donors stating that a “donor is not a parent of a
child conceived by means of assisted reproduction” and henceforth “can neither
sue to establish parental rights, nor be sued and required to support the resulting
child.”43 The new UPA does not require that a licensed physician perform the
artificial insemination procedure nor does it only apply to married women.44
Colorado, Delaware, North Dakota, Texas, Utah, Washington, and Wyoming have
adopted the exact language of the 2002 UPA gamete donation provision.45
Moreover, although Alabama, Connecticut, Florida, Idaho, New Mexico, and
39
Id.
See MINN. STAT. ANN. § 257.56(2) (West 2011); MO. ANN. STAT. § 210.824(2)
(West 2011); MONT. CODE ANN. § 40-6-106(2) (2011); NEV. REV. STAT. ANN. §
126.061(2) (LexisNexis Supp. 2011).
41
See CAL. FAM. CODE. § 7613(b) (West Supp. 2012); 750 Ill. COMP. STAT. ANN.
40/3(b) (West 2012); N.J. STAT. ANN. § 9:17-44(b) (West 2012); WIS. STAT. ANN.
§891.40(2) (West Supp. 2011).
42
N.H. REV. STAT. ANN. § 168-B:11 (LexisNexis 2012) (“A sperm donor may be
liable for support only if he signs an agreement with the other parties to that effect.”); OHIO
REV. CODE ANN. § 3111.95(B) (LexisNexis 2012) (“If a woman is the subject of a nonspousal artificial insemination, the donor shall not be treated in law or regarded as the
natural father of a child conceived as a result of the artificial insemination, and a child so
conceived shall not be treated in law or regarded as the natural child of the donor.”); OR.
REV. STAT. § 109.239 (2009) (“If the donor of semen used in artificial insemination is not
the mother’s husband: (1) Such donor shall have no right, obligation or interest with
respect to a child born as a result of the artificial insemination; and (2) A child born as a
result of the artificial insemination shall have no right, obligation or interest with respect to
such donor.”).
43
UNIF. PARENTAGE ACT § 702 (2000); 9B U.L.A. 295 (2001 & Supp. 2009).
44
Paul Bailin, Ferguson v. McKiernan: The Problematic Concept of Technological
Paternity, 36 J.L. MED. & ETHICS 425, 427 (2008) (citing UNIF. PARENTAGE ACT § 702 &
commentary (2002)).
45
COLO. REV. STAT. § 19-4-106(2) (2011); DEL. CODE ANN. tit. 13, § 8-702 (Supp.
2011); N.D. CENT. CODE § 14-20-60 (Supp. 2011); TEX. FAM. CODE ANN. § 160.702 (West
2012); UTAH CODE ANN. § 78B-15-702 (LexisNexis 2011); WASH. REV. CODE ANN. §
26.26.705 (West 2011); WYO. STAT. ANN. § 14-2-902 (2012).
40
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127
Virginia, have not adopted the exact language of the 2002 UPA, their statutes have
the same effect as if they had enacted the UPA language.46
Although Alaska, Arizona, New York, North Carolina, and Tennessee have
adopted neither the 1973 nor the 2002 version of the UPA, they indirectly mention
gamete donation in their statutes by stating that a child conceived through artificial
insemination and born to a married couple is the natural and legitimate child of
both parents.47 However, if the child is conceived through artificial insemination
and the woman using the donated gamete is not married, then the gamete donor is
unprotected and could face future liability and parental responsibilities.48
Georgia, Hawaii, Indiana, Iowa, Kentucky, Maine, Maryland, Michigan,
Mississippi, Nebraska, Pennsylvania, Rhode Island, South Carolina, South Dakota,
Vermont, and West Virginia lack statutes protecting gamete donors and offer no
protection from the rights and responsibilities of legal parentage for either male or
female gamete donors.49 In the absence of such provisions, traditional family
common law principles would apply.50
Two states—Ohio and New York—have expanded beyond the FDA’s Donor
Eligibility Rule to require in-state DRT institutions to screen and test reproductive
material for genetic risk factors. In addition to obtaining a genetic history and
performing a physical examination, Ohio requires that a donor’s semen be tested
for genetic diseases such as Tay-Sachs and sickle-cell anemia.51 While the Ohio
provision only applies to the screening and testing of semen, the New York law
also applies to donated eggs and requires the compilation of a “complete medical
history, both individual and family, including first-degree and second-degree
relatives.”52 The donor and family history must be evaluated according to criteria
such as the existence autosomal, X-linked, dominant, or recessive major genetic
disorders,53 history of exposure to radiation or chemicals,54 and any conditions that
46
ALA. CODE § 26-17-702 (LexisNexis Supp. 2011); CONN. GEN. STAT. ANN. § 45a775 (West Supp. 2011); FLA. STAT. ANN. § 742.14 (West 2012); IDAHO CODE ANN. § 395405(1)–(2) (2011); N.M. STAT. ANN. § 40-11A-702 (effective Jan. 1, 2010); VA. CODE
ANN. § 20-158(A)(3) (2011).
47
ALASKA STAT. § 25.20.045 (2012); ARIZ. REV. STAT. ANN. § 25-501(B) (Supp.
2011); N.Y. DOM. REL. LAW § 73(1) (McKinney Supp. 2011); N.C. GEN. STAT. § 49A-1
(2011); TENN. CODE ANN. § 68-3-306 (2011) (“A child born to a married woman as a
result of artificial insemination, with consent of the married woman’s husband, is deemed
to be the legitimate child of the husband and wife.”).
48
Id.
49
Kira Horstmeyer, Comment, Putting Your Eggs in Someone Else’s Basket:
Inserting Uniformity into the Uniform Parentage Act’s Treatment of Assisted
Reproduction, 64 WASH. & LEE L. REV. 671, 690 n.105 (2007).
50
David Meyer, Parenthood in a Time of Transition: Tensions Between Legal,
Biological, and Social Conceptions of Parenthood, 54 AM. J. COMP. L. 125, 130 (2006);
Anne Reichman Schiff, Frustrated Intentions and Binding Biology: Seeking AID in the
Law, 44 DUKE L.J. 524, 538 (1994).
51
OHIO REV. CODE ANN. § 3111.91(B)(1)(a)–(b) (West 2000).
52
N.Y. COMP. CODES R. & REGS. tit. 10, § 52-8.5(b) (2010).
53
Id. § 52-8.5(b)(2) (2010).
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may be set forth by the institution.55 New York also requires notifying the
recipient’s physician if the sperm donor was older than forty-four years of age at
the time of the donation.56
C. Guidelines Recommended by Professional Organizations Addressing
Anonymous Sperm Donation
The American Society of Reproductive Medicine (ASRM) Practice
Committee provides non-binding guidelines related to donor screening that stress
the importance of genetic testing.57 The ASRM Guidelines set a minimum standard
for genetic testing and screening in which any male (or his first degree relative)
who has a major Mendelian disorder, any major functional or cosmetic
malformation of a complex cause, heart malformation, or significant familial
disease with a genetic component is deemed ineligible to donate.58 The ASRM
Guidelines also recommend limiting donors to only 25 births per every population
group of 800,000.59
Just like the ASRM Guidelines, the American Fertility Society’s (AFS) 1990
non-binding guidelines emphasize the importance of genetic testing.60 They
recommend that donor records of genetic history be made available on an
anonymous basis at the request of the recipient and the resulting child(ren).61 They
also recommend ten pregnancies per donor or under ten pregnancies if the
recipients are part of an isolated geographic subgroup of the general population.62
The American Association of Tissue Banks’ (AATB) non-binding guidelines
are similar to both the ASRM and AFS guidelines. They require that “[a]ny
condition in a prospective donor or donor’s family history that would pose a risk of
producing an offspring with a genetic disease or defect greater than the risk in the
54
Id. § 52-8.5(b)(10).
Id. § 52-8.5(b)(13) (2010).
56
Id. § 52-8.5(d).
57
The Practice Comm. of the Am. Soc’y for Reproductive Med. and the Practice
Comm. of the Soc’y for Assisted Reprod. Tech., 2006 Guidelines for Gamete and Embryo
Donation, 86 FERTILITY & STERILITY S38 (2006), available at http://www.fpnc.com
/pdfs/2006_Guidelines_GameteEmbryoDonation.pdf.
58
Id. at Appendix A S50. A Mendelian disorder, also known as a monogenic or
single-gene disorder, is a genetic disease that is caused by a single mutation of a DNA
strand’s structure. Definition of Mendelian Disorder, NDI FOUNDATION (last visited Dec.
22, 2011), http://www.ndif.org/public/terms/11890-mendelian_disorder.
59
The Practice Comm. of the Am. Soc’y for Reproductive Med. and the Practice
Comm. of the Soc’y for Assisted Reprod. Tech., 2008 Guidelines for Gamete and Embryo
Donation, 90 FERTILITY & STERILITY S30, S35 (2008), available at http://www.sart.org/
uploadedFiles/ASRM_Content/News_and_Publications/Practice_Guidelines/Guidelines_an
d_Minimum_Standards/2008_Guidelines_for_gamete%281%29.pdf.
60
See Am. Fertility Soc’y, supra note 15.
61
Id. at S4.
62
Id.
55
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129
general population shall disqualify him/her as a donor.”63 The AATB Guidelines
also set a maximum age limit for semen donors (forty) and recommend an analysis
of at least three generations of the donor’s genetic family history.64
II. DONATION INDUSTRY ECONOMICS AND THE COMMODIFICATION OF SPERM
In general, the gamete donation industry raises several complex issues, such
as: whether males and females own their respective genetic material; whether there
is a “fundamental right to ‘consume’ the pleasures of parenting”; and whether
government entities are allowed to encroach upon the market of health services,
and if so, by how much.65 There are a variety of interest groups, industries, and
affiliations that play a significant role in the debate over gamete donation
regulation.66 These include the government, healthcare, insurance, religion,
science, ethics, infertile/fertile persons, and the LGBT community.67 Because of
the vast number of concerned persons, consensus about policy can only exist if and
when all these different constituencies finally agree for different reasons. Aside
from mere discussions about the need for more federal and state regulation and
counterarguments stating that such controls would lead to the scarcity of sperm,
there has not been much activity on behalf of legislative bodies, executive
agencies, or state representatives in proactively addressing the issue.68 This,
compounded with the practices employed by sperm banks in recruiting,
maintaining, and selling sperm, demonstrates how the industry is mostly driven by
a free market economy.
U.S. sperm banks have streamlined the process of recruiting sperm donors and
the subsequent sale of their genetic material to adhere to factors of cultural value,
63
Yaniv Heled, The Regulation of Genetic Aspects of Donated Reproductive Tissue—
The Need for Federal Regulation, 11 COLUM. SCI. & TECH. L. REV. 243, 272 (2010) (citing
AM. ASS’N OF TISSUE BANKS, STANDARDS FOR TISSUE BANKING 45–46 § D4.400 (10th ed.
2002)).
64
Id.
65
SPAR, supra note 11, at xvi, xviii.
66
See generally SPAR, supra note 11.
67
Id.
68
See generally Heled, supra note 63, at 248 (stating professional organizations have
voluntary regulations because legislators and regulators are opposed to regulating human
reproduction issues); see also Pi, supra note 11, at 386 (stating that sperm banks are selfregulated because there is no “meaningful federal or state regulation”); Erik Kriss, Pol in
‘Sperm’ Warfare, N.Y. POST (Sept. 13, 2011), http://www.nypost.com/p/news/local/pol_
in_sperm_warfare_t42i2HgtncQzeLUPsyPrVO (discussing Assemblywoman Deborah
Glick’s plans to propose legislation to limit the number of children a single donor’s sperm
can conceive); Fair Access to Infertility Treatment and Hope Act of 2001, S. 874, 107th
Cong. (2001) (describing a bill that did not pass through the Senate that would have
required health plans to include infertility benefits).
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price, supply, and demand.69 Generally, sperm donors are considered “reproductive
service workers” who sign a contract with a sperm bank pledging to “produce
sperm samples once or twice a week for at least one year [with] each visit . . .
preceded by two days of abstinence from sexual activity.”70 Although egg and egg
donors are more highly valued than sperm and sperm donors due to the more
invasive procedures performed on female donors, such as hormone therapy and
subsequent outpatient surgery, sperm banks nevertheless place high value on their
inventory by ensuring that their genetic material is disease-free and with a high
sperm count.71 In order to “help” couples/individuals conceive a child and
consistently provide “win-win situation[s]” for both donors and recipients, sperm
banks must “recruit ‘sellable’ donors who provide ‘high-quality’ gametes to
recipients who ‘shop’ different . . . sperm banks.”72 Not only do sperm banks reject
over 90% of applicants in order to maintain quality (i.e. ensuring that not only will
each donor give material with exceptionally high sperm counts, but also that he
will keep his appointments and regularly donate), but they also limit the number of
vials stored from each donor keeping supply low and demand high.73 Sperm banks
“expect donors to be financially motivated” as opposed to altruistic because at least
nine months pass (six months of quarantine for testing plus an extra three months
to accumulate enough sperm to be released as inventory) before a sperm donor’s
material is used to help an infertile woman/couple.74 During these nine months, the
banks “invest[ ] a huge amount of money” in the donors’ gametes without making
any return on that specific genetic material.75 In short, the focus is “not on the
donor so much as efficiently running a business without offending the sensibilities
of the [sperm] bank’s clients.”76
As a result of these practices and the advances of ART, a largely
unacknowledged “market for both children and their component parts” has
flourished internationally. That market caters to individuals suffering from
infertility,77 a medical problem that plagues upwards to 7.3 million U.S. women.78
69
See Rene Almeling, Selling Genes, Selling Gender: Egg Agencies, Sperm Banks,
and the Medical Market in Genetic Material, 72 (3) AM. SOCIOLOGICAL REV. 319, 323
(2007).
70
Id. at 320, 324.
71
See id. at 323−24, 328.
72
Id. at 325.
73
See id. at 332 (describing how donors’ sperm is available to recipients only on a
first-come, first-serve basis).
74
Id. at 327, 329.
75
Id. at 328.
76
Id. at 334 (stating that sperm banks must avoid collecting too many samples from
one individual donor because it could be hard to cope with the idea of having “100 or 200
offspring”).
77
SPAR, supra note 11, at xv.
78
See JOYCE C. ABMA ET AL., FERTILITY, FAMILY PLANNING, AND REPRODUCTIVE
HEALTH OF U.S. WOMEN: DATA FROM THE 2002 NATIONAL SURVEY OF FAMILY GROWTH
tbls. 21–22, 67, 69, 97, 138, available at http://www.cdc.gov/nchs/data/series/
sr_23/sr23_025.pdf.
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131
Currently, the gamete donation industry is designed to provide genetic material to
three main groups of infertile people: (1) very wealthy individual/couples who
want to conceive children and who are willing to pay any price; (2) those who
want children but have “limited means” to achieve this desire; and (3) those who
are not wealthy, but have health insurance plans that cover the costs of fertility
treatment.79 The lack of mandatory health insurance coverage for fertility treatment
has restricted access to those individuals/couples who can afford such treatment.
As a result, regional variations of regulations have developed both inside and
outside the U.S.80 Three main models have emerged: (1) restrictive government
policies (Germany) that allow the government to fully ban certain ART
procedures; (2) a line-drawing model (U.K.) that, for instance, allows for the
selection of desired genetic traits, but not genetic mutations; and (3) the laissezfaire approach (U.S.) that views “a parents’ ability to conceive a . . . child” as a
private choice, free from any government intervention, allowing the market for
donated genetic material to develop at will.81
The exercise of private choice within the U.S. allows potential recipients of
donated genetic material to pick and choose gametes they would like to use by
viewing donor profiles.82 Certain donor characteristics (such as lighter skin,
athletic and academic achievements, and musical abilities) are “worth more” than
others, contributing to differential pricing.83 These variations in value and price not
only influence which persons may enter the fertility marketplace, but they also
create socio-economic distinctions among the wealthy (i.e. those who will pay
extra for the genetic material of an athlete). In these situations, what might have
“beg[u]n as an attempt to treat a disease or prevent a genetic disorder” could turn
into “an instrument of improvement and consumer choice”84 implicating complex
ethics and eugenics issues.
In response to the issues raised by differential pricing, both uniform pricing
and no price resolutions have been proposed as measures to curb the
commodification of gametes.85 However, even if the buying and selling of sperm
were wholly prohibited, the market would not be affected because gamete transfer
79
SPAR, supra note 11, at 32.
See, e.g., N.Y. COMP. CODES R. & REGS. tit. 10, § 52-8.5(b)(2), (10), (13) (Consol.
2011); OHIO REV. CODE ANN. § 3111.91(B)(1)(a)–(b) (LexisNexis 2000); Fair Access to
Infertility Treatment and Hope Act of 2001, supra note 68; SPAR, supra note 11, at 34
(discussing how the U.S. is considered a mecca for donated eggs and how Danish sperm is
in high demand because it is “subject to rigorous [testing] standards and guaranteed by the
government to remain anonymous”).
81
SPAR, supra note 11, at 125–26.
82
See Almeling, supra note 69, at 329.
83
Mary L. Shanley, Collaboration and Commodification in Assisted Procreation:
Reflections on an Open Market and Anonymous Donation in Sperm and Eggs, 36(2) LAW
& SOC’Y REV. 257, 272 (2002).
84
SPAR, supra note 11, at 119.
85
See Shanley, supra note 83, at 275–78.
80
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could still occur by an “‘inconvenience allowance’ or by gift.”86 Sperm banks and
recipients could still compensate donors monetarily for their time and discomfort
in transferring gametes, or donors could donate altruistically with recipients still
obtaining the necessary genetic material to conceive a child. Such a market,
however, would still “conflate[ ] human freedom with the exercise of market
choice”87 because donors and recipients could forum-shop for those clinics located
near prestigious four-year universities to have a better likelihood of obtaining
sperm from dedicated and intelligent donors.
In analyzing the U.S. fertility industry as a whole, it is evident to see that
laissez-faire economics have fostered a “race to the bottom” where “the customer”
(i.e. the donor/recipient) “seek[s] the jurisdictions where it is easiest to acquire the
services desired.”88 Sperm banks have created a business model that is largely
governed by supply, demand, value, and price in seeking to benefit both donors
and recipients. The problems cited by theorists surrounding the current U.S. federal
and state regulations are mostly market driven, and any attempts to further regulate
the industry must be first approached through an economic analysis focusing on
property rights.
III. SPERM AND PROPERTY RIGHTS
“Preserving the social anonymity of market goods is . . . fundamental to the
supposition that goods are available to all.”89 In regard to gametes, although sperm
is produced by the human body and implicates notions of “self ownership” for the
donor, it also “become[s] part of a common store” (i.e. the sperm bank) and is later
sold to recipients.90 This notion of “self ownership” should not be interpreted to
mean that individuals can sell any and all body parts.91 Certain categories, such as
hair and sometimes blood, are permitted to be sold, while the sale of body organs
is prohibited.92 Such distinctions are not based solely upon notions of “renewable
and nonrenewable materials or between materials necessary and unnecessary to
sustain life.”93 Nor are they just based upon judgments that body parts “should not
be [put up] for sale either because of the significance of reserving aspects of the
human body from commodification, or because economic need might lead poor
86
Id. at 275; Almeling, supra note 69, at 323.
Shanley, supra note 83, at 275.
88
June Carbone & Paige Gottheim, Markets, Subsidies, Regulation, and Trust:
Building Ethical Understandings into the Market for Fertility Services, 9 J. GENDER RACE
& JUST. 509, 512, 522 (2006).
89
Shanley, supra note 83, at 271 (quoting MARILYN STRATHERN, REPRODUCING THE
FUTURE: ESSAYS ON ANTHROPOLOGY, KINSHIP AND THE NEW REPRODUCTIVE
TECHONOLOGIES 130 (Routledge 1992)).
90
Shanley, supra note 83, at 271.
91
Id. at 271–72.
92
Id. at 271.
93
Id. at 272.
87
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THE PRICE OF SPERM
133
people to sell body parts.”94 Rather, these distinctions exist because the gamete
donation industry is part of a niche reproductive market that has largely remained
free from government intrusion.95 It has operated within a private “domestic
sphere” on a “general societal belief that reproduction and birth control [are]
private family matters.”96 As a result, private choice has largely dominated the
marketplace allowing infertile individuals/couples to bypass average offers of
$4,00097 for female gametes for offers of $50,000+ for eggs from Ivy Leagueeducated women.98
Such commodification and assignment of varying values upon gametes
suggests that they are “property” and “that the person in whose body they originate
has rights of ownership until he or she transfers the gametes (and the rights of
ownership) to some-one else.”99 Property rights include “the right to possess, the
right to exclude, the right to use, the right to dispose, the right to enjoy the fruits or
profits, and the right to destroy” the property in question.100 Although U.S. courts
have not clearly established true property rights regarding the human body, at least
one court has found ownership interest in a testator’s sperm which amounted to a
property right under state probate law.101 At issue was the decedent’s will that had
devised his girlfriend to obtain the “right, title, and interest . . . in any specimens of
[his] sperm [that were] stored with any sperm bank.”102 In the end, the court
concluded that the “decedent had an interest, in the nature of ownership, to the
extent that he had decision-making authority as to the sperm within the scope of
policy set by law.”103 This suggests that property law is flexible and “adaptable to
changing technologies, perhaps even faster and more effectively than the
legislature.”104
In general, theorists argue that modern market economies function most
efficiently when there is a set of clearly established true property rights.105 The
94
Id. at 271–72.
Debora L. Spar, Where Babies Come From: Supply and Demand in an Infant
Marketplace, 84(2) HARVARD BUSINESS REVIEW 133, 135 (Feb. 2006) [hereinafter Supply
and Demand]; Ken R. Daniels et al., The Best Interests of the Child in Assisted Human
Reproduction: The Interplay between the State, Professionals, and Parents, 19(1) POL. &
LIFE SCI. 33, 38 (Mar. 2000).
96
Daniels et al., supra note 95, at 38.
97
Almeling, supra note 69, at 332.
98
Id.; Spar, Supply and Demand, supra note 95, at 135.
99
Shanley, supra note 83, at 271−72.
100
Danielle M. Wagner, Property Rights in the Human Body: The Commercialization
of Organ Transplantation and Biotechnology, 33 DUQ. L. REV. 931, 933 (1995).
101
See Hecht v. Super. Ct., 20 Cal. Rptr. 2d 275, 281, 284 (Cal. Ct. App. 1993); see
also Roy Hardiman, Toward the Right of Commerciality: Recognizing Property Rights in
the Commercial Value of Human Tissue, 34 UCLA L. REV. 207, 226 (1986).
102
Hecht, 20 Cal. Rptr. 2d at 276.
103
Id. at 281.
104
David A. Rameden, Frozen Semen as Property in Hecht v. Superior Court: One
Step Forward, Two Steps Backward, 62 UMKC L. REV. 377, 398–99 (1993).
105
See Spar, Supply and Demand, supra note 95, at 138.
95
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reason for this is that when demand propels a certain market to develop, producers,
investors, and consumers need reassurance that they will get a return on their
investment.106 Property rights provide market participants with a “sense of order
and predictability” and a “set of norms that would proscribe behavior and establish
the limits of predictability.”107
Currently, no such predictability exists in the sperm donation industry. Not
only are donors not fully protected from potential parental support obligations due
to the varying adoptions of the UPA,108 but sperm banks may also be at risk for
failure to disclose, fraud, breach of contract, and punitive damages if a sperm
specimen provided to an infertile individual/couple proves to carry genetic risks.109
Establishing a uniform set of property rights to human reproductive material would
allow donors to “transact more securely” because it would “delineate not only who
has rights to what forms of genetic or social offspring, but [also] under what
conditions those rights can be expanded.”110 For instance, the property rights could
establish that (1) once a male relinquishes his donated material to a common store,
he loses the ownership rights to his own genetic material, (2) anonymous sperm
donors have absolutely no rights to the children conceived by their genetic
material, and (3) children conceived using donated sperm can only contact their
donors to uncover genetic histories under certain pre-established conditions.
It is important to note that such a system of rights would “neither . . . turn
children into commodities nor [biological parents] into baby machines.”111 Instead,
it would ensure that donor-conceived children are not treated as property per se,
and it would prohibit parents from relinquishing their offspring or from profiting
off their intimate relations.112 In “codify[ing] transactions and procedures” that
already exist, such rights would establish a standard that would allow donors and
recipients to understand the rules before participating in the market.113 Most
importantly, these government measures would define market limits and create
economic efficiency without directly encroaching upon the domestic sphere of
“private family matters” and implicating ethics and eugenics issues.114
106
See id.
Id. at 139.
108
OKLA. STAT. ANN. tit. 10, § 555 (West 2011) (providing full protection to egg
donors only by declaring that “[a]n oocyte donor shall have no right, obligation or interest
with respect to a child born as a result of a heterologous oocyte donation from such
donor”).
109
See, e.g., Johnson v. Super. Ct. of L.A. Cnty. (Johnson II), 124 Cal. Rptr. 2d 650
(Cal. Ct. App. 2002) (The case was eventually settled so the court did not proceed to
address the allegations against the sperm bank from donor with hereditary kidney disease.).
110
Spar, Supply and Demand, supra note 95, at 138–39.
111
Id. at 139.
112
Id.
113
Id.
114
Daniels et al., supra note 95, at 38.
107
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THE PRICE OF SPERM
135
CONCLUSION
In short, although the FDA’s Human Tissue Regulations, Donor Eligibility
Rule, and Good Tissue Practices coexist with varying state statutes to control the
quality of sperm and establish paternity for donor-conceived children, the gamete
donation industry has roughly remained subject to laissez-faire economics. U.S.
sperm banks have catered their practices of recruiting sperm donors and selling
their genetic material to adhere to factors of value, price, supply, and demand.
Before any concerns over donor privacy rights, parentage obligations, the spread of
rare genetic diseases, and accidental incest can be addressed, a clear set of property
rights need to be established for human reproductive materials. Such a
recommendation would not only create a more efficient market, but it would also
establish predictability in a niche reproductive market.