Liz and Corey, a long-term lesbian couple living in New York City, have both wanted children as long as they can remember. Last year, upon reaching relative financial stability, the pair asked Mel, one of their best gay male friends, to donate sperm and take an “uncle” role in their child’s life. It was all set, or so they thought.

They soon found out that New York State regulations — considered the most stringent in the country — bans men who have sex with men from becoming anonymous sperm donors. Their physician refused to do the insemination for them, even though Liz and Corey’s donor, while gay, technically was not anonymous. It didn’t matter that Mel had been in a monogamous relationship for four years and consistently tested negative for HIV; in the state’s eyes he was considered a member of a “high risk” group, despite the fact that all donors are tested for a variety of diseases, which presumably would have proven that Mel’s donation was as safe as any heterosexual man’s sperm. The regulations meant Liz and Corey would have to start planning their family again from square one.

“When we learned this news, we figured we had very few desirable options,” Liz explained. “We could go with our straight male friend, but given his own relationship there was no guarantee he would be honest about his entire sexual history, or that his steady girlfriend would even be comfortable with his starting a family somewhere else first. Or we could go with an anonymous donor who was acceptable to the state but about whom we basically knew nothing.”

Eventually, the couple opted for a pre-screened anonymous donor.

“I’m sure the sperm I’m receiving is healthy, and that my donor passed all the tests,” said Liz. “But I’m really annoyed that as an able-minded adult I could not choose the father of my baby, barring actual intercourse which surely would have been more risky than his tested sample.”

Liz and Corey learned the hard way that antigay attitudes continue to hinder LGBT families. But it’s a lesson that queer families nationwide may soon learn if the Food and Drug Administration has its way.

New tissue donation regulations from the FDA, proposed in 1999 but not yet finalized, would effectively bar gay and bisexual men from becoming anonymous sperm donors and make it more difficult if not impossible for such men to conceive children with a woman they know.

Currently, only three states regulate their tissue banking procedures: Maryland, New York and California, each of which has different rules regarding allowable risk behavior for sperm donors. But the tissue banking industry is largely self-regulating; banks in other states, for instance, have adopted their own screening and testing procedures which, according to fertility experts, have proved just as safe as the state-regulated banks. The proposed FDA regulations are therefore not only unnecessary, say concerned advocates, but they unfairly target gay people regardless of their health or sexual practices.

SWIMMING LESSONS

As it stands, there are two ways to receive donated sperm from a fertility clinic or tissue bank: fresh sperm can be inseminated from a known donor, or frozen sperm can be inseminated from a donor who is either anonymous or known by the recipient.

Donors of fresh sperm are tested for diseases at the time of their donation, and recipients of fresh sperm are informed that even if their donor tests negative, there is still a slight risk of disease due to the existence of “window periods” (a man’s exposure to some diseases may not show up on tests for up to three months). Because the donor of fresh sperm is always known to the recipient, risk of disease transmission from the procedure is considered by most professionals to be low.

Donors of frozen sperm, on the other hand, are tested for disease at the time of sperm donation and again after the sperm has been frozen and quarantined for six months, virtually guaranteeing that the sperm is free of communicable disease as long as the donor continues to test negative.

The original FDA proposal — now expected to be finalized by 2004 — requires all tissue manufacturers and processors to refuse anonymous donors who have had sex with a man in the last five years. Additionally, known or directed sperm donors — defined as male donors specifically chosen by women recipients — would either have to be the sworn sexual partners of the recipient, or have their sperm frozen and quarantined for six months before insemination, at which point the donor would be retested for diseases. But because only one in six men has sperm that survives the freezing process, such a quarantine greatly reduces the odds of fertilization — by about 50 percent when compared to fresh inseminations.

Although most banks already place restrictions on anonymous gay donors, and many are uncomfortable with the liability of fresh inseminations regardless of the donor, the new FDA law would no longer allow the possibility for physicians or sperm banks to open their minds — and doors — to consenting adults who choose a potentially high-risk donor. And many clinics have already adapted their policies in anticipation of the more rigid FDA regulations to come.

“It costs us a lot — about $1500 — to get a donor through the screening process even without usable samples,” explains Alice Ruby, executive director of the Sperm Bank of California. “If we’re going to accept a donor and he’s going to be with us for a year, it’s a matter of keeping our business open; a year from now if the regulations take effect we wouldn’t have his sperm to sell.”

Why does all this matter, and how will things change if the proposed FDA regulations take effect?

The obvious result is that many gay men will be prohibited from having children on the basis of discrimination rather than sound science. The FDA’s Dr. Jay Epstein, a leading proponent of the regulations, has cited a high incidence of sexually transmitted diseases among gay men, but has emphasized to the media that “We do not ban a class of people. We ban individuals who have particular behavior risk histories.” However,

heterosexual men with multiple sexual partners under the regulations would still be acceptable, while gay men in monogamous relationships would not.

But the more subtle consequences threaten lesbian motherhood, put women’s health at risk and could dismantle the LGBT family structures that the community has been building for decades.

“What it comes down to is freedom of choice; the government has no business telling adults they can’t decide who will father their children,” said Leland Traiman, director of Rainbow Flag Health Services in Alameda, Calif., which actively recruits gay male sperm donors and serves a large percentage of lesbian clientele. “It’s sterilization by regulation.”

A WOMAN’S RIGHT TO CHOOSE

There are many reasons lesbians may prefer to receive sperm from a gay donor. Women who undergo insemination often ask their trusted friends to be sperm donors, and for lesbians, these trusted friends are more likely to be gay men. Additionally, lesbians may be comfortable with a donor who “gets it,” says Traiman, himself the donor to a lesbian couple with a 10-year-old child and also an adoptive father of a 3-year-old son.

Lesbians cite many reasons for wanting gay sperm donors. Gay men are already familiar with queer family structures, and at the very least are less likely to have homophobic issues around child rearing. A gay man is also less likely to start a family with a woman who would object to his fathering of other children. And for lesbians like San Francisco resident Gwen*, seeking out a gay donor was in part based on her hope that her children may have an increased chance of being gay themselves.

“I really wanted gay sperm because, if there is such a thing as a gay gene, I’d want my kid to have it,” says Gwen. “I think it’s wonderful to be queer and I would love for my kid to have that advantage.”

Gwen and others wonder if our culture’s fear of a possible “gay gene” is the true motivation behind the proposed FDA regulations; “It seems really obvious to me that this is about homophobia,” she says.

Gwen and her partner eventually opted for frozen sperm when unrelated issues arose with their intended gay donor. Their own healthcare clinic provides them with low-cost intrauterine inseminations, an option that would have been unavailable to them with fresh sperm, since the clinic, mirroring the FDA’s proposal, only does fresh inseminations for sexual partners.

But if these limited options had not been available, said Gwen, she would not have given up on starting a family, even if it had meant old-fashioned intercourse.

“We probably would have ended up taking a risk with a gay male friend,” she says, “and hoping for the best.”

This is exactly what troubles Traiman, who believes that if the FDA regulations become law, lesbians will simply resort to unprotected sex or unscreened fluid exchange in order to start their families.

“Gay people are not going to stop having kids. And lesbians are not going to stop using gay men as donors. So what the regulations will mean for lesbians looking for gay donors is that they will go through their friends without using a bank or physician, and without appropriate screening and testing,” said Traiman. “If these regulations pass and it becomes illegal for the medical community to help gays and lesbians safely and sanely start families, then lesbians will be at risk for infections like HIV, Hepatitis and Syphilis, and the FDA knows this.”

There is another important consideration to using a medical professional for sperm donations: child custody. Most states will only nullify parental rights from a biological father if he turns his sperm over to a physician. So lesbians and gay men who may feel forced to circumvent the testing and screening process will not only be at greater risk for disease, they will find themselves having to take additional steps to register two moms as the child’s legal parents.

“It puts people’s health at risk, but it also puts people at a legal risk,” said Sperm Bank of California’s Ruby. “If you go through a physician and the donor is not an intimate partner of the recipient then the donor has no legal rights or responsibilities. So if a woman uses a friend without a bank or physician — even if she doesn’t have sex with that friend — he still could have half parental rights, so a sperm bank is protection for both sides.”

“The implications of these regulations,” echoed Traiman, “are pretty scary.”

TIME TO SPEAK UP

Until the FDA regulations are finalized, public comment — particularly when accompanied by scientific data or factual examples — can be influential is safeguarding lesbians’ rights to safely choose and create their own families.

One issue not addressed by the FDA, for instance, is that there are two types of anonymous donors, one that remains anonymous, and one that eventually allows his identity to be known, a requirement for all of Traiman’s clients.

“We say these are different types of anonymous donors because these men are going to know their biological offspring,” said Traiman. “This puts them in a different category; they are going to have a whole set of ethics and responsibilities around creating a human being they will one day know in some capacity.”

Personal examples may also help to illustrate the regulations’ hypocrisies, as a story from Gwen’s past attests.

Years ago, when she was in the midst of a long-term relationship with a man, she decided to donate blood for the first time. Donated blood is screened for HIV and other diseases, and Gwen’s boyfriend, apparently convinced that her test would come back positive, confessed that he had been having high-risk sex with men during their entire relationship. Thankfully, Gwen tested clean, but after their breakup, her ex-boyfriend went on to marry and have a child with another woman.

“The law takes no interest in me having a baby with that kind of man,” mused Gwen, “but when it comes to becoming a parent through the generosity of a gay male friend who has survived the epidemic and knows what it means to have high risk vs. low risk behavior, the government wants to get involved and tell me not to have a child with that man.”

*Name has been changed.

The FDA’s proposed regulations can be viewed at
http://www.fda.gov/cber/tissue/docs.htm

For tips on submitting public comment,
http://www.gayspermbank.com/fda.html .

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