Last Friday, UK authorities began a legal test case to prosecute two businessmen who were arrested for not having a valid licence to broker the sale of 'fresh' sperm from anonymous donors. The sperm was provided to women for their use in DIY fertility treatments through an online business - Spermdirect.co.uk. Nigel Woodforth and Ricky Gage, the directors of the business, face up to two years imprisonment if found guilty of illegally running a website that is reportedly believed to have matched up to 700 women who wished to purchase sperm for artificial insemination with men willing to donate. Prosecutor Tony Connell explained:' The practice itself is not unlawful. What is unlawful is to do it without a licence.'
Woodforth and Gage deny they require a licence because their service involves the use of 'fresh' semen which, unlike frozen sperm, is not regulated by UK law, and aver that their role is merely one of agency, brokering sperm indirectly by matching women to potential sperm donors without any direct dealing with the sperm samples or insemination process.
The Human Fertilisation and Embryology Authority (HFEA), the government's fertility watchdog and licensing authority, disagrees. UK law requires an HFEA licence to 'procure, test, process or distribute' gametes for human use which, according to the HFEA, includes organisations supplying or transporting of gametes for human use. Connell identified that the key legal issue to be resolved is whether what Woodforth and Gage were doing constitutes 'procuring' which is defined under the Human Fertilisation and Embryology Act 2008 as 'make available'.
In 2005, the removal of donor anonymity caused sperm donor numbers to plummet. Regulated fertility clinics are in crisis with long waiting lists. Reportedly 500 new sperm donors are required each year to meet the estimated 4,000 UK patients that require donor sperm, but in 2006 there were only 307 new registered donors. Increasingly, desperate women have turned to alternative online sperm donation services.
The HFEA warns that significant health risks are associated with unlicensed services. Licensing requires stringent quality checks and regulated clinics test potential sperm donors for HIV, chromosomal and DNA disorders, resulting in only one in 100 men being selected. In addition, promise of donor anonymity is misleading. If the identity is discovered of a donor who did not donate through a licensed clinic then that man is legally recognised as any resulting child's biological father and subject to that financial responsibility, unlike registered sperm donors who can legally contract out of these obligations.
After informing the men that a licence is required on multiple occasions, the HFEA reported them to the police following a customer complaint. Earlier in November 2007, the Guardian published an expose report naming both men as directors of a then-named website, First4Fertility, which provided costly sperm donor services that were misleading and risky.
District Judge Caroline Tubbs at the Westminster Magistrates' Court granted the men unconditional bail on Friday and decided that the matter will be committed this week to the jurisdiction of the Crown Court for consideration.