Court Limits Anonymity of Sperm Donors

An anonymous sperm donor does not have an unlimited right to privacy and can be forced to testify in legal actions alleging that his donation resulted in genetic harm to a child he helped conceive, according to a California appellate court decision.

An attorney for California Cryobank, one of the nation’s largest and most well-established sperm banks, said Friday that the precedent-setting decision could discourage men from donating sperm to infertile couples.

The decision--believed to be the first of its kind in the nation--stems from a Santa Barbara family’s lawsuit against the private sperm bank. The suit alleged that an anonymous donor, known to the family only as Donor 276, was allowed to give sperm, even though he indicated on forms that he had a family history of kidney disease.

As a 24-year-old law clerk in 1986, the donor first walked into the California Cryobank in Century City to donate his sperm for pocket money, according to court documents. On the pages of a lengthy questionnaire, he reported few personal or family health problems--save for Page 9. There, an “X”--scrawled by him or an interviewer--indicates that his aunt had kidney disease, and an “X?” suggests a question about whether his mother did as well.

One of the donor’s many recipients, Diane Johnson, gave birth to a daughter, Brittany, now 11, who was diagnosed with a serious kidney disease that already has led to medical complications and could shorten her life.

The donor sold about 320 depositions of semen to the bank over five years, collecting a total of $11,200, according to the family’s Newport Beach attorney, Walter Koontz. If the donor carries the potent gene suspected in Brittany’s disorder, known as adult polycystic kidney disease (APKD), there is a 50% chance that any child conceived from those vials would develop some form of the disease.

APKD often remains hidden for years, surfacing in middle age, but in Brittany’s case, it surfaced early.

The court concluded Thursday that the alleged donor, who was located by the family’s attorney, must testify in a deposition, answer questions and produce documents in the case. However, the court said, “his identity should remain undisclosed to the fullest extent possible.” The court said the trial court erred in denying the family’s request to compel the testimony.

“The ramifications of this decision for California Cryobank are bad news,” Koontz said Friday. “We are talking about a door that they have kept closed for . . . years.

“Their position has always been that they will selectively determine what they will or will not disseminate on donors. . . . They have consistently used these [privacy] privileges as a cloak to prevent us from getting to the incriminating evidence.”

An attorney for California Cryobank said that the appellate court’s analysis and facts were wrong and that the decision could be harmful to infertile couples. He said his office was considering an appeal to the California Supreme Court.

“This is a service which is intended to help individuals who have not been able to conceive children,” said Cryobank attorney Timothy Graves. “It’s a very significant thing that these [donors] do for these couples. . . . One of the side effects of this decision could be that, if the donor doesn’t believe it’s confidential, [he] might not donate.”

Some Parents Told of Condition

Graves said that there have been “several known live births” from this donor’s sperm and that all the parents have been notified of the donor’s alleged health condition. He said he knew of no other children who were ill or of any other legal actions related to the donor.

In 1995, according to the court, Cryobank informed Brittany’s physician that the donor’s aunt had APKD and had had a kidney transplant; his maternal grandmother had the disease and died of it combined with heart failure; his mother had it and was in good health; and the donor himself was in good health.

The court found that even though California Cryobank knew some of Donor 276’s family history of kidney disease before Brittany’s conception, none of this information had been provided to Johnson.

In fact, according to the court, the sperm bank’s staff falsely represented to the Johnsons that the sperm they were buying had been tested and screened for infectious and genetic diseases.

“Cryobank failed to properly test and screen Donor No. 276 and [to] conduct further investigation or testing of the donor once they learned he had a family history of kidney disease,” the court found.

The court rejected arguments by Cryobank’s attorneys that the donor was fully protected from being compelled to testify in the case because of his right to privacy and because of the confidentiality assured in the doctor-patient relationship.

The court ruled that the constitutional right to privacy is not absolute and that the right must be balanced against other interests, including, in this case, the Johnsons’ right to redress. Moreover, the court said, the donor’s privacy right was “substantially diminished,” in part because he deposited more than 320 specimens with the sperm bank, “a substantial commercial transaction likely to affect the lives of many people.”

The court said the doctor-patient privilege is not relevant because the donor was not truly a patient.

Finally, the court found that a Cryobank contract assuring the donor anonymity under all circumstances “goes too far.” The California family code allows disclosure of information pertaining to insemination by court order if good cause is shown, the court noted.

A medical ethicist said Friday that the court’s decision was “perfectly appropriate” in determining that the health and welfare of a child outweighed the confidentiality interests of a sperm donor.

“My greatest concern would be for the welfare of children born through artificial technologies,” said Alexander Capron, co-director of the USC Pacific Center for Health Policy and Ethics. “The whole thing about anonymous donation has been that you won’t supposedly get people to be sperm donors if their identities can be known. But Sweden and other countries have shown that to be false.”