Suit Seeks Identity of Donor of Sperm Said to Be Tainted

A lawyer for a woman suing a fertility center argued Wednesday in Orange County Superior Court that she has a right to know the identity of the donor of sperm that she said infected her with a virus linked with birth defects.

Betty Lou Brau’s lawsuit against the Fertility Center of California, located in Santa Ana, said she was infected with Cytomegalovirus as a result of an artificial insemination procedure. The procedure did not result in pregnancy.

Brau’s lawyer argued that he needs to know the identity of the sperm donor to prove how his client was infected.

The fertility center’s attorney maintained, however, that disclosure of the donor’s identity would violate his right to privacy and the privileged physician-client relationship.

Operations at the fertility center, founded in 1981 by Herlinda Sullivan, are typical of sperm banks across the nation.

A donor receives $35 to $50, and semen is tested for hepatitis, acquired immune deficiency syndrome and venereal diseases. Samples are listed according to physical and ethnic characteristics. The clinic supplies semen to 90 to 100 local physicians for insemination.

The anonymity of donors has traditionally been carefully protected. Fertility experts agreed Wednesday that a ruling disclosing the donor’s identity in Brau’s case could cripple U.S. artificial insemination programs.

In Los Angeles, Dr. Cappy Rothman, director of Cryobank California, said: “If donors realize that a legal situation could make them expose their past involvement, I think they would just say they don’t want to take the risk.”

Cryobank California provides services for 1,000 inseminations a month, Rothman said.

Disclosure would “destroy a program designed to help humanity,” according to Dr. Jerome K. Sherman, who is researching the transmission of disease via semen and helped draw the first standards for sperm bank operations last year for the American Assn. of Tissue Banks.

“If anonymity were not maintained, the program of artificial insemination would be seriously jeopardized and possibly might not be able to function,” said Sherman, director of a bank at the University of Arkansas.

“Confidentiality is essential. If you were a donor, would you want to have your name made available? What of the consequences in terms of lawsuits? Child care expenses? Paternity?”

Brau’s attorney, Martin B. Berman argued in court Wednesday that privacy considerations should not shield sperm banks from legal liability.

It was the second day of arguments. Court Commissioner Ronald L. Bauer scheduled more for next month, when a decision is expected.

Accreditation of artificial insemination clinics has just begun, according to Jeanne Moore, director of the American Assn. of Tissue Banks, with headquarters in Arlington, Va., but standards drawn up last year call for complete confidentiality of donors.

An ad hoc ethics committee of the American Fertility Society last year revised rules of conduct for sperm banks, according to spokesman Joyce Zeitz of Birmingham, Ala.

The group decided to allow disclosure of information about donors in “extreme circumstances”--such as when samples are shown to contain serious communicable diseases. But the society’s ban on disclosure of donors was not altered, Zeitz said.

In court Wednesday, clinic attorney Robert W. Harlan said disclosure would violate donors’ privacy rights. He also raised the traditionally privileged status of physician-client relationships and contended that Brau had signed a contract at the beginning of the insemination procedure agreeing that the donor would remain anonymous.

Sullivan founded the Santa Ana clinic after working with fertility specialists at UCI. The clinic deals with physicians who perform about 150 inseminations a month.

“It’s (the patient’s) last hope of having a child,” Sullivan said. “If that is taken away from them, where can they turn?”