The FDA's Lesser-Known Insult: A Ban on Gay Sperm Donors

In August the Lifetime show Drop Dead Diva devoted an episode to the so-nicknamed “sperm ban,” a Food and Drug Administration policy meant to keep men who have had sex with men (MSM) from donating to sperm banks. The episode prompted an inevitable comparison of the sperm ban to another FDA policy targeting gay men — the ban on blood donation — and gave the issue a push back into public debate.

The FDA policy barring MSM from donating blood is infamous, sparking protests nationwide and even inspiring a movement for repeal led by members of Congress such as Sen. John Kerry and Rep. Mike Quigley. In comparison, the ban on gay sperm donors is relatively unknown.

That’s because the FDA’s MSM sperm donation policy isn’t really a “ban.” Since 2005 the FDA has offered “guidelines” for sperm banks, suggesting that men who have had sex with men in the previous five years be barred from donating sperm. While some (if not most) sperm banks certainly abide by the guidelines, the policy is neither mandatory nor enforced, meaning some sperm banks do collect donations from gay and bisexual men.

The FDA policy on blood donation, on the other hand, affirms that any man who has had sex with another man since 1977 is barred from donating blood for life, a decision that was upheld by a panel in 2010. 

Nonetheless, it is still possible to donate sperm as a gay man, and according to Nathan Schaefer, director of public policy for Gay Men’s Health Crisis, that’s why the policy isn’t as widely condemned — or as thoroughly covered in the media — as the blood ban.

“It’s on the books but it’s not enforced in the same way,” Schaefer says. “I think there’s not as much attention to it because it’s not like people are being denied all the time. That’s not to say we don’t think it shouldn’t be removed, but that’s why people know less about it.”

The guideline in question is written into the “donor screening” section of the FDA’s “Guidance for Industry: Eligibility Determination for Donors of Human Cells, Tissues, and Cellular and Tissue-Based Products,” the document that outlines the basics of tissue donor eligibility, screening, and testing. The document includes the question, “What risk factors or conditions do I look for when screening a donor?”

The answer is a list of conditions and behaviors that “increase the donor’s relevant communicable disease risk,” advising health care officials to determine a donor ineligible if they meet any of the listed criteria. First on the list of risky donors: “Men who have had sex with another man in the preceding 5 years (risk factor for HIV and Hepatitis B).” The same document also reads, “Contains nonbinding recommendations.”