ICK FACTOR

10.07.14 9:45 AM ET

The Real Problem With Sperm Banks

Sperm banks are barely regulated, a situation that can lead to everything from an increase in hereditary conditions to accidental incest.

Many are outraged by the story of a woman suing a sperm bank for mistakenly providing her with sperm from a black donor, instead of a white donor as she requested. Jennifer Cramblett, who is white, later gave birth to a biracial daughter whom she and her partner are raising—a daughter who will one day grow up to read that her mother felt being impregnated with her was such a hardship that it warranted a lawsuit.

The crux of Cramblett’s complaint is essentially that they didn’t request black sperm and weren’t prepared to welcome a black child into their family—a family that, according to the lawsuit, has some extended relatives who are a little bit racist, and who live in a community that’s a little bit racist.

My heart breaks for this little girl in the same way it breaks for every kid who appears to have been dealt a bad hand in the parental lottery. But I’m not outraged by Jennifer Cramblett’s lawsuit, at least no more than I would be outraged by the Ku Klux Klan suing a manufacturer who mistakenly sends over a stack of black robes and hoods instead of white ones. Do I think the Ku Klux Klan is ridiculous? Absolutely. But do I believe they have a right to be ridiculous and wear ridiculous costumes in the color of their choosing? Well, according to the law, they do.

Which is precisely why I’m not directing my outrage at Cramblett but at the legal system. Whether we like it or not, under the law, Cramblett ordered a “product.” The distributor of the “product” goofed. Anti-discrimination laws are not applicable here, and Cramblett has a right to order “products” to her specification even if you and I consider her specifications silly or bigoted.

But what her case highlights is the lack of regulation of an industry that has life and death implications and is not regulated accordingly. If there is a silver lining in Cramblett’s case, it may be that Americans finally become outraged about the lack of regulation of the sperm donation industry, and start pushing legislators to do something about it.

Consider this: it took the AIDS crisis for serious regulation of the nation’s blood supply to begin, resulting in universal multi-layered safeguards. These regulations ensured that, regardless of where you live, if you receive blood in America there are a series of checks and balances in place to make sure you are safe—and not just you, but the community at large, since as we know it can take just one infection to create a crisis.

But the same cannot be said of the sperm donation industry. Laws vary from state to state, and banks are essentially left to self-regulate. So while people opening random blood banks with minimal federal oversight would be considered a national scandal, people are selling sperm with minimal oversight.

According to FDA regulations, sperm donors are supposed to be tested for major diseases, such as HIV. But a series of recent cases have found clusters of children fathered by the same donor resulting in significantly higher than average cases of hereditary conditions, including heart defects.

“The reason it’s still not heavily regulated is because it’s still fairly new,” Jared Wood, a family law specialist at Massachusetts based Goldstein, Egloff, Ramos and Wood said of the sperm donation industry in a phone interview. “Also, because it involves reproduction, there is a greater hesitancy by the states to get involved.”

Asked why states seem comparatively willing to regulate reproductive rights, Wood clarified that states are more likely to consider laws that affect women once they’ve become pregnant, but are hesitant to say who can conceive and under what circumstances. To his point, we don’t require men who have dozens of children they are not supporting to have vasectomies.

Yet we do have stringent regulations regarding adoption in this country. At the very least, shouldn’t we be applying those standards to potential parents, instead of just handing vials of sperm to anyone with a laptop and a credit card? After reading her candid admissions regarding her family and community’s lack of racial tolerance, I have a hard time believing Jennifer Cramblett would have been cleared to adopt. Raise your hand if you think that’s a bad thing.

So why does it make sense to sell just anyone the “products” to become a parent? And even if we aren’t moved by the moral and ethical questions raised by sperm donation in this country, shouldn’t we be moved by the national health implications?

Besides the recent cases involving fathers with unexpected hereditary conditions, there is another very real health concern that few mention publicly because of the “ick” factor involved: The greater the number of children created by anonymous parents, the greater the possibility for accidental incest. And, crazy as it sounds, this possibility has come up before. Medical News Today reports that, “The American Society of Reproductive Medicine recommends restricting conceptions to 25 births per 800,000-person population,” there are no regulations to enforce this recommendation. ABC News has even profiled a man who fathered at least 150 kids via sperm donation.

He was eventually advised by one bank that he had fathered too many children locally and then began donating elsewhere. Another man believes he fathered closer to 400. These numbers may sound extreme, but in the Wild West of sperm donation they’re not unheard of. One donation can result in as many as 25 children, so if someone donates multiple times per month, it doesn’t take long to creep past 100 if all donations result in successful pregnancies.

So if one donor creates 150 kids who are all around the same age and end up in high school and college in the same local community…well, you fill in the blanks about what can happen.

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For this reason and others, some countries limit the number of offspring a donor can create. In England, the cap stands at ten. And besides the health implications, there are an increasing number of legal ones as states figure out what responsibilities biological fathers have after donating sperm.

“Not all states have statutes that say a sperm donor is not a legal father,” Wood explained, so there have been cases in which women have attempted to sue sperm donors for child support when they hit rough patches financially.

“That should not happen,” Wood said. “So I think federal or state laws that address the parental dynamic would be a good thing.”

Wood then rattled off a series of cases that would have sounded like science fiction a decade ago but are becoming a regular reality for courts, such as determining whether a woman should be able to harvest a husband’s sperm immediately after his death so she can have children at a later date.

He concluded, “Science has accelerated faster than our culture and laws have been able to regarding what appropriate laws and boundaries should be.”