The FDA has been in the process of promulgating national regulations that would prohibit clinics from accepting sperm from homosexual applicants since 1999. The decision will likely be finalized before 2003. Due to these homophobic guidelines as well as those proposed by the ASRM, it is unfortunately necessary for gay men to lie about their sexual preference and sexual history in the application and interview process.

Sperm Bank Regulation

At the state level, sperm banks are regulated as semen banks and or tissue banks/laboratories by the state department where they are located. These regulatory agencies assess the quality of the lab work done at each sperm bank. They also evaluate the ethical policies that are used (i.e. informed consent). These regulatory agencies evaluate whether the sperm bank protects the rights of their clients and donors. At the national level, sperm banks are currently regulated by the American Association of Tissue Banks AATB, for the most part, their guidelines have been widely followed. However, none of these Guidelines have been legally enforcable by the few sperm banks that don't choose to comply. Currently the law does not officially regulate these policies, the regulatory agencies can only remove their accreditation and/or license if these standards are not met.

In 1999 the Food and Drug Administration FDA began the process of promulgating national regulations, which, if passed would prohibit sperm banks from accepting gay aplicants into sperm donor programs. Thanks to work of a few concerned parties, these regualtions have not yet passed into law. The final decision is slated to be made by 2003, but the outcome does not look promising.

According to these guidelines, and those of the AATB Homosexual men, and men who have had sex with other men in the preceding 5 years can not donate sperm. Men who have a history of certain diseases in the family (i.e. cystic fibrosis, sickle cell anemia, etc.) can not donate sperm. Intravenous drug users are automatically disqualified. Men who have visited areas where considerable numbers of AIDS cases have been reported and have had sex with either women or men living there are prohibited from donating.

For the most part, sperm banks that have operated for several decades have developed their own policies to improve the overall efficacy of the sperm donation system. Sperm banks have developed their own systems to track, monitor and evaluate each semen donor and their specimens in order to acquire knowledge of donor fecundity, geographical distribution of donor progeny and the clinical evaluation of donor participation in Semen Donor Programs. Unofficial policy dictates the way in which sperm banks operate. Regulatory agencies assess the quality of the work and enforce informed consent, but many of the policies employed by sperm banks have been developed unofficially over the years.

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Ethical Concerns

As a gay man donating your sperm, you will have the opportunity to contribute to the Gay Agenda by preserving the gay gene for future generations. Many homosexual men feel that sperm donation is a way that they can make reproduction possible for couples who desperately want children, while simultaneously securing a stable environment for their own genetic offspring. Others need money and find the financial compensation for the donation process well worth it. Before deciding to donate sperm, it is important to examine the risks and benefits carefully. If you are HIV positive it is best if you don't attempt to enter into a sperm donor program. There is no real chance of HIV positive sperm being used by a clinic or sperm bank; the extensive screening processes would definatly eliminate any HIV positive sperm before it could be used by a recipient.

Medical Ethics:

When considering the ethics of sperm donation, several factors must be considered: The rights of the sperm donor, the rights of the clients (who are purchasing the sperm), the criteria by which sperm are collected (i.e. choosing a donor who has certain traits), the amount of sperm that a single man can donate.

The following explain the rights of the various parties involved in sperm donation and examine some of the controversial issues in the field. These rights were developed through the principles of medical ethics and informed consent and are not mandated technically by law. However, sperm banks are approved by state health departments and national organizations; if certain criteria are not met, the banks are not accredited.

Sperm Donor Rights:

The identity of the donor shall remain anonymous. The clients have no right to learn the identity of the donor or solicit donor identifying information from any other source. The donor shall also be free from any responsibility to the biological offspring produced by his sperm.

Client Rights:

The clients have the right to be informed of the limitations and potential complications involved with sperm donation. Sperm donation is not always successful and multiple treatments might have to be performed. Also, the sperm bank cannot completely guarantee that the sperm they provide is disease free or free of genetic abnormalities. Although genetic testing and disease screening techniques are advanced and sensitive, they are not foolproof. The client also must understand that she/he is fully responsible for the offspring conceived by use of the specimens.

Sperm donor and client rights are usually established via an informed consent form that is signed by the client and verified by the client's doctor. This form ensures that the client understands his/her rights and the rights of the sperm donor. The principle of informed consent is based on the principles of scientific and medical ethics.

The Ethics of Choosing Sperm:

Sperm banks differ in their selection of sperm donors. All are highly selective, but some are more selective than others. For example, California Cryobank only accepts donors who attend or have graduated from a "major four-year university." Donors must also be tall, trim, heterosexual, and between 19 and 34 years old. One sperm bank, the Repository of Germinal Choice at one time only accepted sperm from Nobel Prize winners. Other sperm banks like CryoGam Colorado, Inc. are selective, but not excessively so. They carry a more "normal" gene pool and their philosophy reflects a distaste for elitism. The disparity between ultra selective sperm banks and ones that cater to a more "normal" population raise ethical questions. Is only providing the most elite sperm a form of eugenics? As of yet, these ethical issues have not been resolved. Sperm banks can carry any type of sperm they wish as long as they adhere to proper laboratory standards and respect informed consent.

How Much Sperm Can Be Donated?

If a donor sires too many kids, the risk of producing children who will eventually copulate increases. Although it sounds unbelievable, half brothers and sisters (from the same donor father) have actually married not knowing they were related. Thus, sperm banks place a limitation on the number of children a donor can produce. A donor can produce a maximum of ten children with his sperm. This limit prevents the problem mentioned above and is adhered to by all sperm banks.

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Legal Concerns

The United States has been characterized by a significant lack of legally enforceable regulation regarding reproductive technology. Because most infertility research is not federally funded, the fertility Industry has had a high level of autonomy in dictating procedural requirements and guidelines. Due to the homophobic guidelines proposed by the AATB as well as the guidelines the FDA is considering; both sperm and egg donation facilities systematically reject Gay applicants on the sole basis of their homosexuality. These guidelines directly exclude any men who have engaged in sex with other men in the past five years on the basis of hypothetical risk of HIV transmission to sperm recipients.

As with many of the pioneering reproductive technologies, the law continues to struggle to keep pace in defining each party’s ultimate role. To date, there are no judicial decisions or statutes that sets forth the rights and obligations of the participants in these agreements. Under the Uniform Parentage Act, maternity and parental rights may be established by genetic testing, completed adoption process or by giving birth to the child. Thus, in a standard sperm donor case, where the sperm recipient contracts to receive the sperm and deliver the child, her name and her husband’s name have traditionally appeared on the original birth certificate. It is important that all parties to a sperm donation agreement participate in psychological and legal counseling at all stages of diagnosis and treatment. This is in order to assure that the parties have had an opportunity to appropriately examine and evaluate the risks involved in the medical procedures, as well as the legal ramifications of entering into the written Sperm Donor Contract.

Because homophobia on the part of the recipients and clinics prevents you from disclosing your sexual preference, you may be concerned about the possibility of legal repercussions. Actually, although sperm banks are prohibited frm accepting Homosexual donor applicants, it is not technically illegal for you to fail to disclose that you are Gay. It is unlikely that either the clinic or the recipient would be able to successfully sue you should your sexual preference become known. To date no one has been sued for non-disclosure of sexual preference for either egg or sperm donation. The fact that sperm banks have had no such lawsuits filed in 50 years of sperm donation in this country is reassuring. And yet it remains true that anyone can sue just about anyone else for anything. We nevertheless believe the risk of a future legal complication from sperm donation is very small.

Although legal statutes vary state by state, generally donors sign away all rights and responsibility to any child born resulting from there donated sperm. Legislation has primarily been used to protect the rights of the recipient, but it also mean that your legal responsibility is negligible. The clinics themselves bear most of the legal responsibility for donor screening. It is important to remember that genetic causation of homosexuality has not yet been scientifically verified. There is no test for homosexuality. We none the less suggest that you are evasive or equivocal rather than untruthful about your sexual preference if possible. In terms of disclosure of sexual history, it is often necessary to lie about the gender of your previous partners. If the application or interview questions do force you to lie about your sexuality, it is highly unlikely that these clinics will be able to somehow discover that you are Gay. If they did manage to find out, they would simply reject your application. The actual investigation of donor applicants is minimal.

One of the most critical elements of an Sperm Donor Contract is the specific relinquishment of parental rights such that the child born under the agreement is considered the legal child of the Intended Parents and to establish that the Intended Parents "consent" to the reproductive treatment. Voluntary and informed consent must be obtained from a sperm donor prior to the aspiration, which would include a thorough medical and psychological screening, genetic testing and social disease testing (including HIV). The psychological screening process plays an important role in obtaining free and voluntary consent for the use of donated sperm.

There are other legal issues to consider when deciding whether to donate sperm. As a donor, a man essentially signs away his rights to his sperm. Once they have been fertilized, unused embryos are frozen. In an anonymous donation situation, the donor has no say in when and for whom the sperm are used. These procedures are new and there is very little legislation governing donors' rights. Arguably, the single most important legal document ever to be executed by a couple or individual who desires to have children is the Sperm Donor Contract. A properly drafted Sperm Donation Contract will prominently and exhaustively address the relinquishment of parental rights by the sperm donor and his spouse. It bears noting that those rare court decisions, in which issues of third party reproduction have been addressed, have yet to enforce the terms of the contract. Rather, the courts have turned to the reproductive contract to determine the intent of the parties.

A carefully drafted Sperm Donor Agreement will specify the Sperm Donor's intent not to establish any form of a parent-child relationship with a child born pursuant to the Agreement, as well as release the Sperm Donor from any and all responsibilities regarding the rearing and caring for the child. Any other result, as the court pointed out in Johnson v. Calvert, would unduly "burden him with responsibilities that he never contemplated and is directly contrary to his expectations." Thus, the contract should specifically address the relinquishment and/or waiver of parental rights by the sperm donor.

Medical Screening:

All parties to a SpermDonor Agreement should be counseled by medical professionals regarding the risks associated with hypothetical disease transmission to recipients. In order to obtain proper consent, the parties to a Sperm Donor Agreement are required to complete a detailed medical history questionnaire and undergo a physical examination by a physician. A complete medical screening for sexually transmitted diseases (including HIV) lowers the risk of infection, and genetic screening minimizes the transmission of known genetic disorders. The Intended Parents generally bear complete financial responsibility for all monetary aspects of the infertility procedure, as well as any resulting complications.

Psychological Screening:

There are a variety of psychological risks faced by individuals who participate in sperm donation agreements. During the course of the sperm donor screening process, sperm donors are routinely required to fill out a complete psychological history, including requests for specific information regarding past and current drug and alcohol intake, and the use of antidepressants. Couples should be aware that there is no specific remedy for patients or couples injured by their reliance on medical history forms.

Considerations That Your Contract Should Cover:

1. Establish financial responsibility on the part of the Recipient Couple for all expenses incurred pursuant to the contract.

2. Declare that the Recipient Couple is financially and legally responsible for the child no matter what. Additionally, the Recipient Couple shall have full custodial and parental rights to the Child.

3. All parties must have legal and medical informed consent.

4. All parties must complete disease testing (including AIDS). Additionally, the Sperm Donor must be medically examined and declared medically appropriate for the program.

5. With recent breakthroughs in cryopreservation, or the freezing of eggs, for later use in infertility treatment, it is important that couples consider the use, storage and disposal of excess embryos not used for the initial medical treatment.

6. Establish specific responsibilities of each party so as to minimize subsequent misunderstandings.

7. ED, Inc., should keep records on all parties in the event information is later needed for legal or medical reasons.

8. Detail legal and psychological framework so all aspects of this process are thought out, considered and pondered by everyone prior to entering into the agreement.

9. Outline confidentiality concerns and provide for privacy for all parties.

10. Stipulate that the laws of the State will govern this contract.

According to the Sperm Donor Act, adopted in many states, the donor of semen provided to a licensed physician for use in the artificial insemination of a woman other than the donor's wife is treated in law as if he were not the father of the child. Thus, the genetic father bears no financial, legal or social responsibility for a child born as a result of the donation. Moreover, where donor sperm is utilized, the intended parents need not take any legal steps to finalize the paternity of the child. Rather, the intended father is considered to be the legal father.

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