Informal Sperm Donation and Reproductive Justice
By Naomi Cahn and Sonia Suter
In the aftermath of Dobbs, as barriers to accessing fertility care increase, one area of growing interest is informal (“DIY”) sperm donation, which does not use sperm banks or fertility clinics and thus appears to challenge some of the class and race inequities in access to assisted reproductive technology.
First, accessing sperm outside of official channels allows participant to evade any potential regulation of who can access ART. Much of the focus after Dobbs has been on potential laws that might prohibit the discard of extra embryos or limit how many can be created in the first place. In the aftermath of Dobbs, both states and Congress have considered restrictions of, and protections for, assisted reproductive technology (ART). Colorado, for example, enacted ground-breaking legislation that recognizes the rights and interests of donor-conceived people and sets limits on the numbers of families that can use an individual donor. Congress also has pending legislation that would protect access to fertility treatment based on concerns that Dobbs could limit such access. DIY sperm donation skirts these issues entirely.
Second, it is potentially less expensive. A vial of sperm can easily cost more than $1,000. And this is to say nothing of the costs of associated procedures. Only 14 states have fertility insurance coverage of IVF, and legislation in the 2021-2022 Congress on that score stalled. There are already disparities in who receives infertility services: those with incomes under $25,000 are half as likely as those with incomes over $100,000 to see “a medical provider because they are unable to become pregnant.” For people with disabilities, who face twice the poverty rate of people without disabilities, the cost of infertility treatment can be “out of reach.” Black women are almost 40% less likely than white women to see a medical provider when they face infertility, in part because physicians are less likely to refer them to specialists due to biases that “Black women can’t be infertile.” Informal sperm donation may address some of these issues around accessibility and cost.
Third, it expands the types of potential donors, especially those who are underrepresented in sperm banks. Black donors make up less than 2 percent of donors in the largest cryobanks, in part because the screening criteria disproportionately exclude them. As the number of Black women turning to sperm banks increases, there is “fierce competition” for the small supply of sperm from Black donors. Indeed, as Dr. Tia Jackson-Bey, a fertility doctor in New York City, explained, “every patient of color at her practice has experienced the struggle of finding a sperm donor who shares their background.”
The number of Hispanic and other non-white or non-Asian donors is also strikingly small. In addition, gay male donors are excluded from providing their sperm by the FDA. Although no federal entity keeps track of sperm donation, there is an estimate of the amount sold on the open market, but none on the informal market.
While there is always the possibility of finding sperm from a good friend, on Craigslist, or even a neighborhood listserv, there are additional options. Consider the Facebook group, Sperm Donation USA. It is a private group, with more than 23,000 members. Its public-facing page offers: “If you would like to find a sperm donor without the expensive costs of a sperm bank then join Sperm Donation USA!.”
But an unregulated market in sperm may also produce harms. These informal markets feed into the illusory idea that parties are free to structure reproductive arrangements with no state role; in fact, the parties rely on the state not just for parentage determinations, but also for health care support. In light of other ongoing national political battles, there is a risk to using a known donor in some states, particularly for LGBTQ families. In addition, the lack of oversight raises problematic health risks. The regulated sperm market may not fully protect against the transmission of genetic disease, but it does protect against sexually-transmitted disease. And given that some of the unregulated sperm market includes not just artificial insemination, but also “natural insemination,” there are potential risks of sexually transmitted diseases and sexual violence. Also problematic is the difficulty of gathering information on informal sperm donation, and the number of offspring per donor, given that we do not even have a federal entity that tracks formal sperm donation.
Finally, note that this issue is gendered; an informal market in eggs would be difficult to establish, as donating eggs requires medical intervention, while donating sperm easily can be done outside of a fertility clinic.
Conclusion
For people who are infertile for medical or social reasons, Dobbs leaves open a series of fundamental questions that go beyond abortion and that underscore the many layers of inequities in exercising reproductive autonomy in the United States.
At the same time, there are fears that reproductive rights advocates will become splintered by class, with wealthier, white people concerned about ART, while the reproductive justice movement focuses on broader issues of reproductive health and “the ability and rights of women to have or not have children, and to parent their children with dignity.” As an example of the potential class-based differences, consider that former VP Mike Pence, who is a staunch anti-abortion advocate, used IVF.
In our current legal landscape, we are bound to see discrepancies as to who has access to ART based on wealth, class, gender, sexuality, ability, and location. Although it may inspire and support the free sperm movement, these Dobbs-exacerbated disparities will need solutions that center and advance reproductive justice.
Naomi Cahn is Justice Anthony M. Kennedy Distinguished Professor of Law, Nancy L. Buc ’69 Research Professor in Democracy and Equity, and Co-Director of the Family Law Center at the University of Virginia School of Law.
Sonia Suter is the Henry St. George Tucker III Dean’s Research Professor of Law, the Kahan Family Research Professor of Law, and Founding Director of the Health Law Initiative at the George Washington University Law School.
