A few weeks ago, it was reported that a sperm donor had sued CARE fertility after discovering that his sperm had been used in the treatment of same-sex couples, even though he had specified in advance that he did not want this to happen (see BioNews 1066). Following a 'four-year legal battle', CARE apparently settled his case for a 'five-figure sum'.
Whether or not a donor should be able to place conditions upon the use of their gametes is a complicated question. Some instances of conditional gamete donation are widely accepted. For example, known donation is generally conditional upon the donor's gametes being used in the treatment of one named individual, and not for the treatment of anyone else.
We would not normally think that there is anything wrong in specifying that you are willing to help a lesbian friend conceive, but that you do not wish to become a sperm donor for multiple unknown recipients. When potential sperm donors use 'introduction' websites in order to make contact with potential recipients, they can choose who does – and who does not – have the opportunity to conceive with their sperm.
Is positively choosing to donate to a particular person different from choosing not to donate to other people because of their particular and protected characteristics. Many people will think that there is a difference, but why?
When we choose to donate to a friend or relative, we are not discriminating against someone else on the basis of their characteristics, we are just offering to help someone we care about. Even though a person's prejudices may inform their choice of friends, most of us are comfortable with giving preferential treatment to friends and relatives because we do this all the time.
When we choose to donate to strangers, a preference for one type of stranger over another will generally be grounded in discriminatory assumptions, which are therefore more visible than the discriminatory preferences which may underpin someone's choice of friends. As a result, there is a widespread belief that the donation of bodily material to strangers should be a freely given gift, which is not contingent upon the recipient conforming to the donor's specifications.
For example, there was an infamous organ donation case 22 years ago in which the deceased's family agreed to the donation of his organs, but only if they went to white recipients. The organs were accepted, on the grounds that the people who would have received his organs in the absence of this condition (one of whom was likely to die within 24 hours without a transplant) happened to be white, so the condition made no difference in practice. But following an investigation, the Department of Health concluded that the organs should not have been accepted, and that in the future, organs should be refused if families seek to place conditions upon their use.
This absolute rejection of conditional cadaveric donation was modified ten years later when a different sort of case emerged, in which a woman died suddenly, shortly after expressing an interest in becoming a living kidney donor for her mother. She was on the organ donor register, and because no conditions could be placed on her organs' use, her kidneys were donated to strangers rather than to her mother. Following this case, 'requested allocation' became possible, where the deceased wished to donate to a specific relative or friend, provided that there is no one on the waiting list in desperately urgent clinical need for the organ.
It is interesting that the rejection of conditional cadaveric donation – unless it is to a relative or friend – co-exists not just with the acceptance of conditional living donation, but with the reality that most living donation is conditional. Most living kidney donors are willing to donate their kidney only to a specific relative or friend with kidney failure. Non-directed living donation is possible but unusual, and extra safeguards are in place in order to ensure that no money has changed hands in exchange for the donation.
Of course, gamete donation is different from cadaveric organ donation, not least because in the case of the racist condition, there was an identifiable person who would have died if the organs had been rejected. Refusing to accept gametes with discriminatory conditions attached to them may lead to less choice for recipients, or to delays in their treatment, but it will not result in their immediate death.
Under the Equality Act 2010, healthcare providers must not discriminate against patients on the grounds of their protected characteristics, and the Code of Practice from the Human Fertilisation and Embryology Authority spells out that 'patients should not be discriminated against on grounds of gender, race, disability, sexual orientation, religious belief or age'.
This is normally assumed to apply to clinics making decisions to offer, or not offer treatment services, rather than to donors. But if, as a result of accepting gametes with discriminatory conditions, same-sex couples were offered a worse standard of care than other patients, this could amount to discrimination. Certainly, in order to avoid being sued by another angry conditional donor, clinics would be well advised to refuse to accept gametes where the donor wants to specify in advance the sexual orientation of potential recipients.
It is, however, worth acknowledging that potential donors who wish to impose discriminatory conditions upon the use of their sperm will be able to do so if they opt to become an informal donor, who 'meets' potential recipients on an introduction website, and who has no obligation to donate to anyone who expresses an interest in receiving their sperm. Is this yet another implication of the mixed economy of sperm donation, where strictly regulated donation in licensed clinics co-exists with almost completely unregulated informal donation?