Faced with substantial costs and waiting lists in fertility clinics, increasing numbers of New Zealand women are turning to ‘freelance’ sperm donors. Now some of them are complaining about the conduct of one of those donors. But is this a problem the law can fix?

This week, TVNZ’s Sunday programme led with a feature about sperm donation. Specifically, about a ‘freelance’ sperm donor going by the name Tauranga Tony (real name Tony Ross). He’s donated sperm to a number of women. Quite a large number, apparently. And some of those women are now pretty angry.

I was interviewed for the show. As well as writing about this sort of thing, I’m also the deputy chair of ACART, the regulator who makes the rules about assisted reproductive technologies (however in this piece, I’m speaking strictly for myself and not for ACART.)  The programme producers wanted to know whether Ross was doing anything wrong. My answer – based on the facts as they presented them to me – was that morally, it sounds like he is, but legally, probably not.

For the producers, that pointed to an obvious conclusion. There was a gap in the law and it needed to be closed. I’m sympathetic to their sense that there’s something wrong with the behaviour in question. But getting from that point to arguing for a new law is a bit trickier.

What is it specifically that the recipients are unhappy about? They got the babies they so badly wanted, and all admitted to being deliriously loved up with them. So what’s their problem?

The programme outlined a few different complaints about the donor. These related to:

• Lying about how many women he’s donated to;
• Concealing aspects of his family health history (his daughter is said to have a heart murmur, asthma and some other health issues);
• Misrepresenting his intentions regarding future contact with the children.

(Since the programme aired, I’ve been contacted by one of the women in question. She has alerted me to some other concerns. But my thoughts here are about those that featured on the programme.)

The first concern is to do with the risk that their children will inadvertently end up partnering with half-siblings. This might seem an unlikely prospect, but it’s one that fertility treatment providers take fairly seriously. The rules governing fertility clinics limit donations from one donor to a maximum of 10 families. The clinics themselves are even more cautious. The biggest of them, Fertility Associates, sets it at 5 families, because:

“Statistical calculations show that the chance of an incestuous marriage where there are five families with the same biological father is very small for a country the size of New Zealand.”

But when donation takes place ‘independently’, outside of the clinic environment, no such rules apply.

Precisely how concerned we should be about this is outside of my expertise. But I can see that there could come a point – whether this would be after one man donates to 10 families or 50, I don’t know – where this might begin to raise a reasonable concern. Particularly, I dare say, if the donations were within a smallish geographical area, and the children all around the same sort of age.

Next, there’s the concern with ‘genetic health’. I don’t know if that’s really a concern in the TVNZ case. The programme painted a bit of a mixed picture in that respect. My question here is more general: should there be some sort of rule against passing on ‘dodgy genes’?

To be honest, that kind of thinking concerns me. Restricting the reproduction of the ‘genetically unfit’ would be a pretty big step down a pretty scary road. True, clinics dealing with sperm donors ask about family histories. But trying to restrict someone’s freedom to reproduce more generally, on the basis of eugenic concerns? I’m not sure we want the law to go any further in that direction.

No, the issue that bothered me – that had me using terms like ‘morally reprehensible’ on national television – concerned the alleged dishonesty. If it’s right that ‘Tauranga Tony’ induced these women to accept him as a sperm donor on the basis of distortions of the truth, then I’d say that’s the problem.

Most of us probably don’t share Immanuel Kant’s view that lying is always wrong. We can imagine circumstances (from Kant’s murderer at the door example, all the way down to excuses for declined invitations) where lies can be lesser evils. But big lies that trick people into making risky or important decisions are generally regarded as pretty bad.

Maybe we think it’s irrational for the women to worry about possible inadvertent incest or inherited health problems for their children. All the same, we might think those should have been their decisions to make on the basis of honest information. Duping them into a decision would be wrong.

There’s a big difference, though, between something being wrong (even ‘reprehensible’!) and it being the sort of thing the law does or should prohibit. There are many spheres of life that we leave up to individual conscience, social sanction and the like. Many of us might think that ‘cheating’ on a partner or spouse is bad behaviour, but it isn’t the sort of thing we’d want to call the cops over.

Sometimes that’s down to practical considerations. Some parts of life are almost impossible to police, at least without costs of one sort or another that many of us would find intolerable. We might prefer it ideal if one man didn’t father dozens of kids in different families because we’re worried about accidental incest among his offspring. But it isn’t really clear how we could stop someone, without intruding into really private matters between consenting adults. There are, to state the obvious, more ‘traditional’ ways of getting pregnant than sperm donation and artificial insemination, and it’s hard to imagine the law setting a limit on the number of sexual partners someone might have.

Dishonesty, though. That’s the sort of thing the law does tend to take an interest in. In quite a few contexts, manipulating people by dishonesty is illegal. So what does the law have to say about dishonest sperm donors?

As far as I can tell: not a lot. To a large extent, the practice exists in a bit of a legal void.

Even within clinics, artificial insemination is what the law terms an ‘established procedure’. That means it doesn’t need ethical approval and can’t be subject to ACART guidelines. That might seem surprising. It certainly seems to have perplexed and annoyed some of the women in the TVNZ item. But it’s in keeping with the law around reproductive treatments. The more routine forms – IVF, (most) gamete donation, and yes, artificial insemination – are treated pretty much like any other medical procedure. While they need informed consent (i.e. have to be provided competently) they don’t require any special ethical oversight.

Do TVNZ’s revelations cast that situation into doubt? Maybe donor insemination is more ethically risky than we had realised? Bringing it within the remit of those sorts of regulations, though, could be a tricky business. At least some forms of artificial insemination can be carried out at home, without expert assistance (the ‘turkey baster’ of popular imagination is actually more likely to be a needle-less plastic syringe, but you get the idea). Imposing any rules on those sorts of arrangements seems like an ambitious endeavour, even were it thought desirable.

What’s more, getting ethics committee approval takes time and money. Given that those obstacles seem to have driven those women away from the clinic sector already, it isn’t obvious how useful it would be to try to extend the committees’ remit. To be blunt, we’d only know they were doing it if they chose to tell us. And they seem to have some strong incentives not to do that.

What about criminal law? Well, it’s a criminal offence to buy or sell human sperm or eggs, or to advertise them for sale. There could also be criminal offences committed if someone knowingly passed on semen when he knew he carried a serious contagious disease like HIV. Other than that, there’s no criminal law about sperm donation, at least as far as I can tell. The procedure doesn’t involve any actual physical contact between donor and recipient, so there’s no question of any assault-type offence. And provided no money changes hands, it can’t really be in the fraud family of offences.

Matt Chisholm, who presented the TVNZ item, pushed me quite hard on whether this meant there was a ‘gap’ in the law. I can see his point. It does feel like the sort of conduct which the law should have something to say. But how to fill that gap?

One option would be to create a specific criminal offence. I’m not sure how this might be worded, but the gist would be inducing someone to accept donor sperm by dishonesty (donor eggs, for obvious reasons, always need clinic assistance, both for retrieval and implantation, so the issue doesn’t really arise in the same way).

There’s no reason why a very specific offence like that couldn’t be introduced to address a very specific form of deception. We currently have a very specific offence of acting as a spiritualist medium or psychic with intent to deceive. So yeah, I reckon it could be done.

But this is an area that’s going to need some careful thought. First, is it a proportionate response to the problem? How often does this sort of thing happen? How many people are affected? How badly?

Next, would it actually deter future mendacious donors? Without any insight into their psychology, I wouldn’t like to guess. Would it afford protection to women whose longing for a child leaves them vulnerable to this sort of behaviour? Or might it have the effect of pushing the whole business even further underground, or maybe even incentivising even more risky behaviour?

Prosecuting the offence could present problems too. Reliable evidence of what was said by whom could be hard to get. The offence would also presumably need an element of intent, so the prosecution would need to show that the donor deliberately misled. Then again, these challenges aren’t unique to this situation.

These are the sorts of questions that need to be asked before making any big changes in the law. It seems to me, though, that it’s a discussion worth starting. Because from what I’ve been told since the programme aired, ‘Tauranga Tony’ is far from a one-off case. And these worries are starting to mount up.