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Prohibiting sperm donor anonymity in the US and possible effects on recruitment and compensation

3 April 2017
By Andrew Hellman and Professor Glenn Cohen
Andrew Hellman is a JD candidate and Glenn Cohen is a professor of law at Harvard Law School
Appeared in BioNews 895

Many children conceived using donor sperm or eggs want to know their biological parents. In the US, some clinics make the identity of the sperm donor available to a donor-conceived child at age 18. Most intending parents, though, choose sperm donation programs that do not reveal the identities of the sperm donors – so-called 'anonymous sperm donation' (though some have questioned whether true anonymity is possible in a world of social media and direct-to-consumer genetic testing) (1).

In many parts of the world, laws now require sperm donor identities be made available to donor conceived children when they reach a certain age, typically 18. Since Sweden became the first country to pass such a law in 1985, other jurisdictions have followed suit, including Austria, Germany, Switzerland, the Netherlands, Norway, New Zealand, and the UK. The Australian state of Victoria has prohibited anonymous donation since 1998 and now allows all donor-conceived people to apply for information about their donors – even those who donated before 1998 and did not consent to being identified (2). As many jurisdictions that allow anonymous donation, including the US, push for similar legislation, studying the matter empirically has become increasingly important.

In particular, if the US were to adopt a mandatory identification system, what would be the effect on the supply of willing sperm donors? A recent paper co-authored by one of us, Cohen, Coan, Ottey, and Boyd (2016) (3), attempts to answer this question using empirical methods to study current US sperm donors.

The UK's HFEA (Human Fertilisation and Embryology Authority) provides a good model of a legally required identification system. UK law requires donors to enter personal information into the HFEA registry, including non-identifying information – the donor's physical description, year and country of birth, and marital status, for example – and identifying information – the donor's name, birth date, and last known address. A donor conceived child can apply for their donor's non-identifying information at age 16 and for their identifying information at age 18. Some observers have raised concerns that legally prohibiting donor anonymity could considerably reduce the number of men willing to be sperm donors, but others dispute that claim or think the UK data are inconclusive. In any event, both the reproductive technology industry and attitudes towards openness and family identity vary significantly from country to country. Therefore, while useful, studies of the UK and other countries can only tell us so much about how mandatory identification would affect the pool of willing donors in the US. Would mandatory identification decrease the pool of willing donors? If so, could paying donors more make up for those who would opt out of donating under a mandatory identification regime?

To our knowledge, Cohen and Coan (2013) (4) was the first experimental study to explore the effects of mandatory identification laws on individual preferences for sperm donation. The study asked 393 US males between the ages of 18 and 60 what they would need to be paid in order to donate sperm. Participants were assigned to two groups: those in the control group were told that identifying information was protected by anonymity, consistent with US law, while participants in the treatment group were told that registration of identifying information was mandatory, consistent with UK law. The study found that, on average, participants in the mandatory identification group needed to be paid about $40 more to donate than subjects in the anonymous donation group. Among the 332 participants who reported that they would actually consider donating sperm, the mandatory identification group required $31 more. While the results were suggestive, the study faced a major limitation in that study participants were not sperm donors. Because sperm banks are highly selective, accepting fewer than 10 percent of prospective donors, a group drawn from the general American male population, as the study participants were, may not be representative of actual US sperm donors.

The newer study, Cohen, Coan, Ottey, and Boyd (2016), sought to return to the same research question with a different sample: actual US sperm donors. The study recruited active and inactive donors from a major (and typical) US sperm bank, ultimately garnering responses from 67 active and 94 inactive donors. Of the 161 respondents, 90 are (or were) anonymous donors and 71 are (or were) open identification donors. Participants in the treatment group were first given information explaining the mandatory identification system as implemented in the UK, including the kinds of information donors must disclose, and told to imagine they were donating in the context of such a program. The control group was given no information about mandatory identification. Both groups asked to provide the amount of money needed to donate (including an option not to donate at any price). More specifically, the treatment group was asked in reference to the UK mandatory identification law: 'If US law was changed in this way, how much money, if any, would you need to be paid in order to donate your sperm?'

The study found significant differences between the treatment and control groups. Nearly 30 percent of participants who were willing donors under the current anonymity regime indicated they would refuse to donate under a mandatory identification regime. Among the participants who did not flat-out refuse, those in the mandatory identification group on average requested $102 more per donation than those in the protected anonymity group. The data from the full sample were skewed by five participants who asked for anywhere between $500 and $5000 more to donate in the mandatory identification condition. But even after removing all participants who asked for more than $400 – five times the current pay for donors – participants on average asked for $40 more to donate with mandatory identification than anonymously. In other words, almost 30 percent of currently willing donors would opt out entirely if mandatory identification were required, and those donors who would still be willing would expect somewhere between $40 and $102 more per donation.

Our results illustrate the challenges that legislation requiring mandatory identification could impose on the supply of sperm donation in the US. Under a mandatory identification regime, sperm banks might need to spend more on donor recruitment and compensation in order to maintain an adequate supply of sperm donors. Alternatively, sperm banks could broaden their criteria for eligible donors. Whether such a change in standards would be positive or negative depends, in part, on how much of the current standards reflect success rates and health requirements as opposed to the preferences of the recipients of the sperm. Some qualities banks screen for, such as the ability for sperm to freeze well and that sperm be free of STIs, sexually transmitted infections, or serious genetic diseases are likely non-negotiable. Finally, it is worth emphasising that US sperm banks have complete discretion to alter compensation, which makes them quite different from sperm banks in other countries that have strictly regulated what sperm donors can be paid.

1) DNA: Donors Not Anonymous
Harvard Law: Bill of Health |  5 December 2016
2) Donor anonymity comes to an end in Victoria, Australia
BioNews |  6 March 2017
3) Sperm donor anonymity and compensation: an experiment with American sperm donors
Journal of the Law and the Biosciences |  23 November 2016
4) Can You Buy Sperm Donor Identification? An Experiment
Journal of Empirical Legal Studies |  23 October 2013
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