The American sperm bank NW Cryobank intends to file a lawsuit against its client
American Danielle Teuscher decided to give DNA tests as presents last Christmas to her father, close friends and 5-year-old daughter, joining the growing number of people taking advantage of low-cost, accessible genetic testing. The results of a consumer genetic test identified the mother of the man whose donated sperm was used to conceive Danielle Teuscher’s daughter. Legal warnings soon followed.
The 23andMe test produced an unexpected result. Ms. Teuscher, 30, a nanny in Portland, Ore., said she unintentionally discovered the identity of the sperm donor she had used to conceive her young child. The mother of the donor was identified on her daughter’s test results as her grandmother. Excited and curious, Ms. Teuscher decided to reach out. She wrote her: “Hi, I think your son may be my daughter’s donor. I don’t want to invade your privacy, but we’re open to contact with you or your son.”
Growing interest in DNA testing already has upended families across the country. Even as long-lost relatives discover one another, individuals have learned that their biological fathers are not the men they believed, that their ethnic backgrounds are not what they were told. So perhaps it’s no surprise that the fertility industry is facing questions, too. For decades, the business relied on the idea that sperm banks can guarantee anonymity to donors, and promised that there wouldn’t be any relationship with offspring unless the donors wanted.
But now? “Donor anonymity will suffer the same fate as the cassette tape,” said Andrew Vorzimer, an attorney in California, who specializes in reproductive law.
In Ms. Teuscher’s case, NW Cryobank, the sperm bank in Spokane, from which she had bought the donated sperm, sent her a stern letter, in which it threatened with penalties of $20,000 for “flagrantly” violating the agreement she’d signed by seeking the identity of the donor and contacting his family. The bank also said it would deny her access to four vials of sperm from the same donor that she had hoped to use.
“Upon further investigation, we may be entitled to additional monetary damages if you have used other ancestry DNA programs, facial recognition tools on the internet or any other means, directly or indirectly, to contact or seek the identity of the donor. We will seek a restraining order or injunction if you continue with this course of action in any manner.” - said the letter, written by the sperm bank’s general counsel, Margaret Howell Benson.
NW Cryobank is known to be aggressive in enforcing its privacy provisions, Mr. Vorzimer added. But now reached a point where it’s become impossible to protect the privacy of clients and sperm donors.
Donor sperm is sold anonymously, but NW Cryobank and its affiliate California Cryobank — the largest sperm bank in the country — now only accept “ID disclosure” donors. The donor is required to agree that when a donor-conceived child turns 18, he or she is entitled to know the donor’s identity.
Leora Westbrook, general manager and vice president of NW Cryobank, said in an email that the bank does not prohibit clients or their offspring from taking a DNA test, but seeks to prevent the use of that information to identify a donor who has made a donation in reliance upon anonymity. Once the child is no longer a minor, Ms. Westbrook added, he or she may not only take the DNA test but may also contact the bank to determine if the donor is open to being contacted.
Ms. Teuscher said she would fight to regain access to four vials of sperm withheld by NW Cryobank. If she decides to have additional children, she wants for them to be full sibling. Ms. Teuscher didn’t remember reading that fine print when she signed the papers. According to her, she was discouraged and very upset when she received such a letter. Ms. Teuscher said she will fight to get back the four vials of donated sperm now withheld from her. In case she ever wants to have additional children, she wants for them to be full siblings.
Legal experts called the bank’s position precarious. While Ms. Teuscher may be constrained by an agreement, they doubted that her child could be. You can’t sign away the rights of a child who hasn’t been born, said Dov Fox, a law professor at the University of San Diego who specializes in bioethics and the regulation of technology. “Even if they could stop parents from reaching out, there's no way they can keep offspring from trying to find their genetic donors,” said Dr. Fox. “If a sperm bank asks prospective parents to sign away their not-yet-existing child's ability to test her own DNA, a court shouldn’t enforce a provision like that.”
Glenn Cohen, a professor and bioethicist at Harvard Law School, agreed and questioned: “Is such a contract contrary to public policy and thus unenforceable. The mother of a child conceived with donated sperm might well argue that in trying to determine whether the child has any inherited medical issues, she inadvertently discovered a donor’s identity. A sperm bank likely can’t prevent her from obtaining that medical information. One overarching question is whether in a world of whole-genome sequencing and entities like the Donor Sibling Registry that are sharing information, these clinics have to reset expectations for would-be parents and donors as to what anonymity means,” - said Mr. Cohen.
The popularity of genetic testing is challenging the sperm donor industry in other ways, too. The Donor Sibling Registry is a website that connects sperm or egg donors and donor-conceived people with one another. In dozens of cases, families using the site have learned that sperm used to create their children was not provided by the donor they had selected, said Wendy Kramer, director of the registry. “This number will most certainly increase over time.”
Photo: Moriah Ratner for The New York Times
Based on The New York Times