Explosive legal developments in the sperm donation industry have raised significant questions about reproduction technologies and sperm banks in Canada and beyond.
Three separate Ontario families have recently launched lawsuits against a U.S.-based sperm bank and its Canadian retailer, alleging they were misled about their sperm donor’s background history, which included a criminal record and significant mental illness.
The families – all of whom used Donor 9623 – have brought suits against Xytex Corp., a Georgia-based company, and Ontario-based Outreach Health Services because, they were allegedly deceived. While Donor 9623 was marketed as very well-educated, a model of fitness, and a popular donor, other accounts suggest this wasn’t the case at all.
Court statements claim this donor was diagnosed with schizophrenia, suffered from narcissistic personality disorder, was a convicted burglar, and misrepresented his education, having claimed the IQ level of a genius. Essentially, the antithesis of what you’d normally look for.
In the Toronto Star, a recent editorial argued that Paying for Sperm Should Not be Illegal. Just like with selling human plasma (as I’ve written about here and here), there is much debate. A lot of Canadians agree that we ought to be able to choose what we do with our body products, as Americans can. Do you? Do you think we should be able to buy and sell body products in Canada?
A fact of life with reproduction is that some people find they need help conceiving. Couples may struggle with sterility, decreased fertility, or one of the many other causes that make conception difficult. And sperm banks, which use cryobank technology, are facilities that offer solutions.
In Canada, under the 2004 Assisted Human Reproduction Act, you cannot be paid to donate. This law prohibits the payment of sperm donors (and other providers of reproductive tissues), as a matter of principle – and this is in order to prevent the commercialization and commodification of human reproductive tissues.
This legal situation has, according to some, created a “sperm shortage” and established conditions wherein, much like plasma, we hypocritically use body products from other foreign paid systems. (In Saskatchewan, much of the discussion about for-profit plasma centred on the fact that we are forced to import from the United States.)
For paid sperm donors in the US or elsewhere, screening is often vigorous and takes typically two to three months to complete. There are basic requirements, such as being 18 years of age and having no chronic health problems, but banks also have variable screening processes. Perhaps you have to be over 5 feet 7 inches. Perhaps you need a college degree.
The practice of sperm donation and cryobanking has not been without controversy. In 1954, three Iowa babies were conceived using semen that had been frozen and stored before use, a first in human reproduction. This represented a step forward in assisted conception, thus transforming the sperm bank from a futuristic (perhaps frightening) dream in The Handmaid’s Tale or 1984 or Twins into a viable part of reproductive medicine.
Criticism emerged from both medical and religious circles. The Roman Catholic Church, for example, had condemned all means of artificial impregnation as early as 1897, and it reiterated its opposition, based on the separation of sexuality and reproduction, through the 1950s. Pope Pius XII called artificial insemination of any kind “entirely illicit and immoral.”
The New York Academy of Medicine initially condemned the technique in general, and the general public in U.S. demonstrated a mixed response.
At the same time, eugenicist and Malthusian undertones also led to criticism of sperm banking, with all of the pseudo-scientific, racist and sterilization images that these previously powerful movements conjured.
Of course, we have slowly accepted the practice of artificial insemination, in vitro fertilization, and other techniques. But in David Plotz’s excellent book, The Genius Factory, we can see, even amid a transformation from societal antipathy to gradual acceptance, how sperm banks have the potential raise questions with reproductive technologies. In short, recent history has lessons for the present case against Xytex and Outreach Health Services.
In 1980, Robert Graham, an eccentric millionaire inventor, founded the Repository for Germinal Choice, which was instantly dubbed the “Nobel Prize Sperm Bank” by the press. Graham’s plan was to encourage a kind of positive eugenics and he won over at least three Nobel winners, who agreed to be part of the master plan and delivered their seeds of genius – much like Donor 9623 promised to do.
It was a bizarre attempt at breeding a super-race which brought to life Malthusian worries and Social Darwinism, or, as David Plotz points out, converted these ideas “into dismal practice.”
The effort was undone for a variety of reasons, and one of the most significant had to be Nobel Prize winner William Shockley’s admissions about low levels of intelligence and forced sterilization. As one of the famous donors at the Genius Factory, he provided a public and rather unseemly view of picking and choosing children’s traits like flavours of ice cream.
However, unlike Donor 9623 (whose real name is James Christian Aggeles), Shockley was a bona fide intellectual powerhouse. As distasteful as ideas were, he was co-inventor of the transistor and Nobel Prize laureate. He was not misrepresenting himself.
The recently launched lawsuits suggest that Donor 9623 lied about his IQ, his criminal record, as well as his health history. According to the statement of claim, the companies involved failed to screen and monitor donors properly, but, worse still, actively sought to sell the sperm after the donor’s arrests and mental health history were revealed.
“Instead of conducting an actual investigation into the claims made by Aggeles, Xytex promoted Donor #i9623 as one of their best donors,” the statement of claim said. “Xytex promoted Aggeles as a man of high integrity who was extremely intelligent and incredibly educated.”
Xytex, hailing from Georgia, has responded by calling itself “an industry leader” that “complies with all industry standards in how they safely and carefully help provide the gift of children to families…”
Bear in mind that these are American industry standards, which once again raises questions about the introduction of a paid donor model in Canada. Much like plasma, there is a large international market in sperm and a limited amount of sperm is provided altruistically here.
So should we re-evaluate our laws to allow for paid donation? This isn’t an easy sell.
In Canada, we don’t have a lengthy history of “paid” donation.
And while our neighbours to the south implemented such a system as early as 1937, Canadians have an altogether different vision of buying and selling parts of the body, including eggs, sperm and bone marrow. The recent federal discussions over plasma clinics clearly illustrated this.
Yet, the lawsuits by Ontario families may point toward the need for a deeper conversation about sperm donation and regulation in Canada.
According to Robin Henig’s book, Pandora’s Baby, the historical trajectory of reproduction technologies shows that our reservations about cutting-edge medical advancements and policy reforms gradually dissolve when couples have more chances to have families with children.