Sperm-anent ban

If a proposed FDA regulation becomes law, only the most chaste gay men will be able to donate sperm

by Neil Miller

The Food and Drug Administration (FDA) is considering issuing a regulation that would effectively prohibit gay men from being anonymous sperm donors. Under the FDA's plan, any man who has had sex with another man during the previous five years will be barred from donating semen for anonymous use at a sperm bank. The purpose of the ban is to safeguard against HIV transmission. But the proposal is disturbing to many activists, who see such wholesale exclusion as discriminatory -- and anachronistic.

For a number of years, virtually every sperm bank in the US -- worried about HIV and concerned with litigation -- has had a similar restriction. The federal government stayed out of the matter, leaving the regulation of sperm banks to the states. But, as part of a February 1997 framework on human-tissue regulation, the FDA proposed turning the informal five-year ban into national policy. As an added protection against HIV, the FDA also proposed prohibiting sperm banks from using fresh, instead of frozen, semen in cases where the woman knows the donor. Neither of these regulations would apply to private arrangements made outside of sperm banks.

The FDA has yet to publish the proposal in the Federal Register, the first step toward formal adoption. But at a meeting on April 8, 1999, an FDA official suggested that such action might occur soon.

That was when activists sprang into action. "They are throwing science out the window," says Maura Riordan, executive director of the Sperm Bank of California, the only mainstream sperm bank in the nation to accept gay donors. "Why should a sperm bank be able to take sexually active heterosexuals as donors, but not men who practice safe sex with other men?"

In mid-May, Riordan was among a group of West Coast activists and civil-liberties advocates who signed a widely disseminated letter criticizing the FDA proposal. The FDA "is trying to prevent gay men from having children," the letter began ominously. In Washington, the Human Rights Campaign (HRC) alerted the Department of Health and Human Services (HHS) to what was happening. HHS Secretary Donna Shalala will have to approve any FDA regulation, and the HHS is more sensitive to political pressures than the FDA.

Quickly, the FDA began to back off. "We don't know how it will all play out yet," FDA spokeswoman Lenore Gelb told the Phoenix. "It hasn't even been proposed yet. And how it will absolutely be proposed isn't set in stone."

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Compared to rules regarding blood donation, the proposed semen regulation is mild. According to FDA mandate, no man who has had sex with another man -- even once -- since 1977 is eligible to give blood. That's a 22-year "window." However, a heterosexual who has had sex with a prostitute or has contracted a venereal disease is allowed to donate blood a year later. The New England chapter of the American Red Cross Blood Services lobbied the FDA and the American Association of Blood Banks a year and a half ago to re-examine all deferral policies, but to no avail, according to Melissa Croteau, a spokesperson for the local Red Cross. "It's ludicrous," says Croteau of inconsistencies in FDA blood policy. "That's my personal opinion."

Whatever the government ultimately decides, the controversy raises the question of the degree to which pandering to public fears is determining FDA policy on who is eligible to donate sperm or blood. It focuses attention on the policies of sperm banks in the US at a time when lesbians and gay men are increasingly having children through artificial insemination. And, as has often happened throughout the AIDS crisis, it also brings to the forefront the thorny issue of how to balance public-health protections with individual rights.

The current restrictions on sperm donation by men who have had sex with other men in the past five years are based on US Public Health Service guidelines for tissue donation. Organizations such as the American Association of Tissue Banks (AATB) also follow these guidelines. "It is part of our standards," according to Dr. Robert Stevenson, the tissue association's accreditation-program manager. If a sperm bank doesn't forbid such donors, it won't receive AATB accreditation, he says. And New York has written the five-year requirement into state regulations, forcing out-of-state sperm banks that sell sperm to New York residents to go along with it.

In February of this year, Riordan's Sperm Bank of California, located in Berkeley, became the first mainstream bank to break ranks and accept gay donors. (The Rainbow Flag Health Services, a tiny bank in nearby Oakland, also uses gay donors.) One reason: some two-thirds of the 300 to 400 women who use the bank each year are lesbians. And many of them prefer gay men as donors, Riordan says.

Under the sperm bank's revised policy, all anonymous donors -- straight and gay -- will be tested for HIV. If they are negative, their semen will be frozen for six months, and then they will be re-tested. If they are still negative at that time, the sperm can be used. The six-month waiting period will assure that the semen is HIV-free.

More typical of sperm banks around the country, however, is New England Cryogenic Center, located in Boston's Kenmore Square. New England Cryo rejects donations from men who have had sex with other men in the previous five years, and also turns down IV drug users and men who have been incarcerated. All these groups are considered to be at high risk for HIV. "We follow the nationwide criteria set up by the AATB, the American Red Cross, and the American Association of Reproductive Medicine," says director John Rizza. "Semen is in the same category as blood."

Rizza denies that his refusal to accept donations from men who have had sex with men represents discrimination against gay men. "We are not singling out any group," he insists. "We are just trying to protect our clients." And he notes that 15 to 18 percent of those clients are lesbians, "the fastest-growing segment of our market."

But if New England Cryogenic Center and the other sperm banks are practicing anti-gay bias, it would be extremely difficult to win a case against them in court, even in states with gay-rights laws, according to Mary Bonauto, legal director at Boston's Gay and Lesbian Advocates and Defenders (GLAD). "There is no automatic right to donate," she says. "This is not employment. This is not housing. This is not credit."

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Ironically, the FDA's proposed exclusion of gay semen donors comes at a time when the demographics of AIDS in the United States are shifting. Gay and bisexual men no longer make up most new HIV cases, as was the case in the early years of the epidemic. In Massachusetts, for example, sex between men was the mode of transmission in 25 percent of new AIDS cases in 1997, down from 57 percent in 1989, according to the Massachusetts AIDS Surveillance Progam.

The proposal also comes at a time when technological advances make it possible to determine very quickly whether someone is HIV-positive. Throughout most of the epidemic, the window between the time when someone was first infected with HIV and the time when that person would test positive was believed to be up to six months. (The only recorded case in which it took more than six months for HIV infection to show up involved a heterosexual man. He did not test positive until two years after he had been infected.) But these days, new tests that measure viral load can determine whether someone is positive a few days or weeks after infection, according to Dr. Kenneth Mayer, director of medical research at Boston's Fenway Community Health Center.

Given these advances, Mayer believes that even the six-month moratorium that the Sperm Bank of California has adopted is long, though he leans toward it as a precautionary measure. But he does object to singling out gay men for exclusion, as the FDA proposal would do. "You certainly can't justify the five-year limit on the basis of the window period," says Mayer.

To critics, the policy appears to be hopelessly outdated. "It is as if this idea sat on someone's desk for 10 years and they cleaned up and suddenly found it," says Kate Kendell, executive director of the San Francisco-based National Center for Lesbian Rights. "It is steeped in the knee-jerk fear and reaction that was prevalent in the early days of the epidemic. It is not tied to real life."

Clearly, that's not the way the FDA and the American Association of Tissue Banks see it. "The idea is to err on the side of safety rather than take risks," says the AATB's Stevenson.

The FDA's proposed regulation on the use of fresh semen in sperm banks is less controversial than the ban on men who have had sex with men, but it has its critics as well. This particular proposal would not affect anonymous donors, but would apply when a woman makes an arrangement with someone she knows to provide the semen, and the sperm bank simply "stores" it for her. The FDA wouldn't ban gay men as donors in such cases, but it would insist that sperm banks first test donors, then freeze the sperm for six months, and then re-test donors before insemination.

The Sperm Bank of California's Riordan doesn't really object to this. She "leans towards quarantining all semen," and notes that her sperm bank uses only frozen semen. But the letter sent out by the California activists (including Riordan) criticized the FDA on this point, contending that only one in six men has sperm that survives the freezing process well enough to meet the World Health Organization's minimum standard of fertility. For this reason, some fear that the ban on fresh sperm could put a crimp in the gay and lesbian baby boom. "The FDA are sticking their noses into the private reproductive lives of Americans," says Leland Traiman, chief author of the letter, and director of Oakland's Rainbow Flag Health Services and Sperm Bank. "They are saying to the gay community, `We are sterilizing you!' " Because it uses both gay donors and fresh semen, Rainbow Flag would be doubly hurt if the proposal becomes an FDA rule.

Traiman, an independent nurse practitioner, insists that whatever Washington decides, he is going to continue on his current course. "They can take me to court," he says.

Meanwhile, AIDS researcher Mayer notes that in Europe, scientists have developed methods to "wash" or purify semen by removing HIV-infected white cells from spermatozoa. The process has been performed on more than 1000 heterosexual couples in Germany and Italy in cases where the man is HIV-positive and the woman is HIV-negative, he says. At present, no sperm bank in the United States would agree to do this, Mayer says, because of the "litigious climate" prevailing on this side of the Atlantic. But eventually, such advances in technology could make the entire debate moot.

Neil Miller wrote about the revamped Pride Committee for the May issue. He can be reached at mrneily@aol.com.

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