According to guidelines from the federal Centers for Disease Control, "men who have had sex with another man in the last five years" should be excluded as donors of human tissue and organs.
In effect, the guideline means the CDC recommends against allowing non-celibate gay men to be sperm donors. While the document doesn't have the force of law, many sperm banks-including Xytex, the company used most often by both clinics in Atlanta that offer donor insemination to lesbians-voluntarily follow the recommendation.
"Basically, everyone is following the CDC," said David Towles, director of public relations for Xytex. "It may not be law, but any bank could be exposed to a potential lawsuit by not following the guidelines. That's the standard."
But it's a standard Leland Traiman, a gay man living in San Francisco, has founded both a business and a political cause in fighting. A nurse practitioner, Traiman founded Rainbow Flag Health Services, a known donor agency whose "founding goal" is "building a stronger lesbian and gay community by uniting lesbians and gay men to bring children into their families."
Now Traiman fears the federal Food and Drug Administration may adopt the CDC guidelines as law, effectively ending both his business and the cause he passionately believes in.
Traiman said FDA doctors and others have told him the restriction is under consideration, and as evidence, he points to a letter he received from a New York state health official in response to his questions about that state's sperm donation guidelines.
"It is our understanding the intent of the Food and Drug Administration is to require semen banks to comply with the current [public health service] exclusionary criteria for anonymous donors," wrote Dr. Jeanne Linden, director of the state's Blood and Tissue Resources department. "New York State regulations must be, minimally, as restrictive as federal requirements."
Traiman fears such a move by the FDA would lead to a drastic curtailing of gay men's "reproductive rights."
"Everyone should have the freedom to have children. It's as simple as that-freedom of choice," he said, noting the difficulty and expense gay men often face adopting children.
FDA spokesperson Lenore Gelb said the FDA does not currently regulate sperm banks, and the only regulations currently proposed would simply require all human tissue facilities to register with the agency.
Gelb declined direct comment on whether there is any truth to Traiman's fear that the FDA is considering adopting the CDC's guidelines and banning gay sperm donors.
She said that the agency will not discuss future regulations until they are made public as proposals for comment, and the human tissue registry is the only regulation affecting sperm banks that has reached that phase.
That proposal document states that "minimally processed tissues transplanted from one person to another for their normal structural functions," which includes donor semen, "would be subject to infectious disease screening and testing" but does not specify those screening criteria.
Although any specific rules by the FDA would have to go through the publication and public comment process, advocates like Traiman who oppose a strict ruling prohibiting sperm donors who have had sex with men may face strong adversaries.
The American Medical Association has recommended that sperm banks adopt the CDC's guidelines, while the American Society for Reproductive Medicine advocates excluding "men with a history of homosexual activity."
The CDC did not respond to an interview request by press time. But in a letter to Traiman, a physician with the agency's Division of HIV/AIDS Prevention defended the policy-along with excluding donors with other risk factors like IV drug use or hemophilia-as necessary to protect public health because the standard procedure of testing the donor for HIV, quarantining the semen for six months, then testing the donor again isn't enough.
"Although HIV antibody tests have become increasingly sensitive, there still remains a small risk of HIV transmission from infected donors who either do not seroconvert, seroconvert very late (e.g. after six months), or who falsely test negative," wrote Dr. Robert J. Simonds. "Behavioral exclusionary criteria can serve to further reduce this risk by excluding persons at higher risk for HIV infection from donating."
Traiman, however, counters that the last case the CDC reported of someone who didn't seroconvert for over six months after HIV infection was a heterosexual man who got HIV from his female spouse.
"One straight man who got AIDS from his wife isn't a reason for excluding all gay men from donating," he said, arguing that the criteria actually give sperm recipients a "false sense of security" that their risks have been reduced. "The very case the CDC sights to continue their exclusion of gay men would not have been excluded."
Instead of the CDC's guidelines, Traiman advocates testing and quarantining all donated semen for HIV, informing recipients that the donor is gay, and letting them decide for themselves.
But some medical service providers may already refuse to provide reproductive services for gay sperm donors even when the recipient is aware of the donor's sexual orientation.
Earlier this month, the Massachusetts Commission Against Discrimination found probable cause in a gay man's complaint against the New England Medical Center.
Robert Carr alleges the hospital refused to allow him to use its sperm bank to freeze his sperm for insemination with a lesbian friend because he is gay and considered at risk for AIDS-although Carr, who develops AIDS programs for the Massachusetts health department, has tested negative for HIV.
Hospital officials maintain Carr was rejected because their sperm banks offers services only to patients who are enrolled in their infertility program or are concerned about future infertility due to chemotherapy or other medial treatment.
The two sides will meet Jan. 14 to attempt to settle the case.*
Food and Drug Administration
Once posted, any proposed guidelines will list specific phone numbers
and addresses for comments.
* Robert Carr won!