To the dismay of
gay rights activists, the Food and Drug Administration
is about to implement new rules recommending that any man
who has engaged in homosexual sex in the previous five
years be barred from serving as an anonymous sperm donor.
The FDA has rejected calls to scrap the
provision, insisting that gay men collectively pose a
higher-than-average risk of carrying the AIDS virus.
Critics accuse the FDA of stigmatizing all gay men rather
than adopting a screening process that focuses on
high-risk sexual behavior by any would-be donor, gay
"Under these rules, a heterosexual man who had
unprotected sex with HIV-positive prostitutes would be
OK as a donor one year later, but a gay man in a
monogamous, safe-sex relationship is not OK unless he's been
celibate for five years," said Leland Traiman, director of a
clinic in Alameda, Calif., that seeks gay sperm donors.
Traiman said adequate safety assurances can be
provided by testing a sperm donor at the time of the
initial donation, then freezing the sperm for a
six-month quarantine and testing the donor again to be sure
there is no new sign of HIV or other infectious diseases.
Although there is disagreement over whether the
FDA guideline regarding gay men will have the force of
law, most doctors and clinics are expected to observe it.
The practical effect of the provision--part of a
broader set of cell and tissue donation regulations
that take effect May 25--is hard to gauge. It is
likely to affect some lesbian couples who want a child and
prefer to use a gay man's sperm for artificial insemination.
But it is the provision's symbolic aspect that
particularly troubles gay rights groups. Kevin
Cathcart, executive director of Lambda Legal, has
called it "policy based on bigotry."
"The part I find most offensive--and a little
frightening--is that it isn't based on good science,"
Cathcart said. "There's a steadily increasing trend of
heterosexual transmission of HIV, and yet the FDA
still has this notion that you protect people by putting gay
men out of the pool."
In a letter to the FDA, Lambda Legal has
suggested a screening procedure based on sexual
behavior, not sexual orientation. Prospective donors--gay
or straight--would be rejected if they had engaged in
unprotected sex in the previous 12 months with an
HIV-positive person, an illegal drug user, or "an
individual of unknown HIV status outside of a monogamous relationship."
But an FDA spokeswoman cited FDA documents
suggesting that officials felt the broader exclusion
was prudent even if it affected gay men who practice
safe sex. "The FDA is very much aware that strict exclusion
policies eliminate some safe donors," said one document.
Many doctors and fertility clinics already have
been rejecting gay sperm donors, citing the pending
FDA rules or existing regulations of the American
Society for Reproductive Medicine. "With an anonymous sperm
donor, you can't be too careful," said a society
spokeswoman, Eleanor Nicoll. "Our concern is for the
health of the recipient, not to let more and more
people be sperm donors."
However, some sperm banks, notably in
California, have welcomed gay donors. The director of
one of them, Alice Ruby of the Oakland-based Sperm
Bank of California, said her staff had developed procedures
for identifying gay men with an acceptably low risk of HIV.
Gay men are a major donor source at Traiman's
Rainbow Flag sperm bank, and he said that practice
would continue despite the new rules. "We're going to
continue to follow judicious, careful testing
procedures for our clients that even experts within the FDA
say is safe," said Traiman, referring to the six-month quarantine.
The FDA rules do not prohibit gay men from
serving as "directed" sperm donors. If a woman wishing
to become pregnant knows a gay man and asks that he
provide sperm for artificial insemination, a clinic could
provide that service even if the man had engaged in sex with
other men within five years. However, Traiman said
some lesbian couples do not have a gay friend they
know and trust well enough to be the biological father
of their child, and would thus prefer an anonymous donor.
Deborah Cohan, an obstetrics and gynecology
instructor at the University of California, San
Francisco, said some lesbians prefer to receive sperm
from a gay donor because they feel such a man would be more
receptive to the concept of a family headed by a
same-sex couple. "This rule will make things legally
more difficult for them," she said. "I can't think of
a scientifically valid reason--it has to be an issue of