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

In an emailed statement, a spokeswoman for the FDA reaffirmed that the guidelines are in place to minimize transmission of diseases.

“The FDA recommendations regarding the donor eligibility determinations for donors of human cells, tissues, and cellular and tissue-based products (HCT/Ps), which include reproductive tissue, represent FDA’s current thinking on the topic in light of current scientific information and epidemiological data,” wrote FDA spokeswoman Rita Chappelle. “FDA’s regulation of reproductive tissues is aimed at reducing the risk of infectious disease transmission.”

Part of what makes both the blood donation and sperm donation guidelines so stinging to gay rights activists is their inconsistency among groups. For example, a man who has had sex with an HIV-positive woman can donate blood after a period of just 12 months. In cases of both blood and sperm donation, MSM are immediately eliminated from the pool of donors regardless of whether they practice safe sex. Gay rights advocates assert that the FDA policies are rooted in a decades-old stereotype associating gay men with HIV.

“The inconsistencies that are applied to gay men compared with heterosexuals underscore their discriminatory nature,” Schaefer says. Speaking of efforts to repeal one or both policies, he added, “They’re very related campaigns, and I think they’re part of a broader movement to urge the FDA to reform their policies, some of which date back to the 1980s.”

Leland Traiman is the executive director of Rainbow Flag Health Services and Sperm Bank, an Alameda, Calif., sperm bank that actively recruits gay and bisexual sperm donors for known donor insemination. He’s been an activist for fairer donor regulations since the ’90s, when he fought a secret committee that attempted to outlaw sperm donation by MSM in the state of California. He says because gay and bisexual donors are still turned away from some sperm banks, in spite of the FDA guidelines being nonbinding, gay rights activists have “won the war, but are losing the battles.”

If the FDA discovers a sperm bank accepts donations from MSM, it can send the sperm bank Form 483, a document warning the bank that its practices contradict FDA guidelines. Traiman says he’s filed complaints with the FDA for issuing him a 483, claiming the FDA is trying to enforce a guidance document as regulation.

“The FDA is a very powerful organization, and they intimidate people. They try to enforce the guidance document as if it were regulation, which they themselves admit they cannot legally do, and then they do it anyway,” Traiman says. “If you push back, they fall apart because they can’t pursue you.”

Schaefer says while there are ways around the FDA guidelines, like enlisting the help of an organization such as Rainbow Flag Health Services to find a local gay-friendly sperm bank, it doesn’t mean the guidelines are right — medically or legally.

“It’s still outdated,” Schaefer says. “It singles out gay men as unduly risky and a threat to public health.”