Sperm-donor laws a ‘travesty’ says fertility lawyer

Sperm donations are more heavily regulated in Canada than the U.S., but Canada

An Ontario couple’s nightmare encounter with a U.S. sperm bank is due in part to short-sighted Canadian laws that drive aspiring parents into a poorly-regulated market, says a fertility law expert.

Two women from Port Hope, Ont., are suing a U.S.-based sperm bank after recently discovering the donor sperm used to conceive their now seven-year-old didn’t come from a highly-educated “mature and eloquent” donor as advertised, but a schizophrenic college dropout with a criminal record.

Angela Collins and Margaret Elizabeth Hanson have launched a lawsuit against Georgia-based Xytex, Inc. on multiple counts including fraud, negligent misrepresentation, and unfair business practices.

The banning of paid sperm donations in Canada has contributed to the situation that couples like Collins and Hanson find themselves in, says Toronto-based fertility lawyer Sara Cohen.

“This is a travesty that our laws are making us rely on other countries when we could be doing it ourselves and we could do it so much better,” insists Cohen, adding the legal change was too narrowly focused on the perceived problem of commodifying sperm.

The federal Assisted Human Reproduction Act was amended in 2004 to outlaw paid sperm donations. Since then donation rates have plummeted. ReproMed — the country’s largest sperm bank — currently has just over 50 donors available.

The industry is heavily regulated in Canada, while in the U.S. there is little oversight. Some donors father dozens of kids and pass on untold genetic problems. In 2009, a U.S. medical journal profiled the case a of a donor who passed a potentially deadly heart condition on to nine of his 24 children, including one who died at age two.

Cohen says Canadian regulations provide better protection, but that protection isn’t worth much when the small donor pool drives prospective parents elsewhere.

“What we’ve done is just outsourced the problem,” she adds. “All this sperm that’s being imported into Canada was paid for anyway in the U.S., so I don’t see it being any different. We’re not taking care of our own people in a way that I think is appropriate.”

However, it’s not clear exactly what those standards are. Cohen says the Xytex case might create some legal guidance for sperm-bank regulation but until then, banks are mostly just regulating and protecting themselves.

For its part, Xytex denies it “failed to comply with the highest standards for testing.” In an open letter, released this week, company president Kevin M. O'Brien added: "We stand by the process we followed, and intend to vigorously defend ourselves against the allegations in this lawsuit."

Read: U.S. sperm bank sued by Canadian couple says it didn't verify donor information

One alternative to sperm banks is the use of a “known donor” — literally someone you know. Cohen says known donors are “generally less risky” since aspiring parents can enter contractual agreements to perform background checks and obtain thorough medical records.

However, she concedes that using known donors relies too much on altruism and still doesn’t satisfy the demand for donations, leaving too many people looking to less reliable sources regulated by outside authorities.

“(Canada needs) legislative changes to expand the (donor) pool in such a way that we could have more control over the quality and the standard of care as opposed to just relying on what standard an American court is going to decide,” she says.
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