Would you donate your sperm

When doctors donate their own sperm

commentby Claudia Brügge, Chair of DI-Netz e.V. *

“Stina” is the pseudonym of a 37-year-old woman who helped set up the “Spenderkinder” association and the website of the same name a few years ago (1).

Stina was conceived in 1979 through donor sperm treatment at the Essen University Hospital (2). Her parents did not inform her about sperm donation until she was 26 years old. Then Stina wanted to sue the doctors at the time for the release of the donor identity, but was unsuccessful by legal means (3).

Now, however, Stina reports on the Spenderkinder website that, after twelve years of uncertainty, she was able to identify her donor (4). Using a DNA database and using the Internet.

Stina's research report

In her post, Stina describes how she registered with three different international companies that carry out DNA tests and received a match with an American first or second cousin at the end of March (5). After this news it only took two minutes to google the donor: a doctor who was working at the Essen University Hospital when her mother was treated there. Stina does not give his name.

She describes her approach in a few words. With the help of the cousin's name from the gene database, she quickly found the obituary on the Internet for an American uncle of the donor, in which a German nephew was mentioned. Just as quickly, she was able to assign the name of this German nephew to a man from the medical staff of the Essen clinic at the time. Your brief report ends with a positive assessment of the usefulness of DNA testing.

Stina's report is extremely interesting in two ways:

Firstly, the high relevance of DNA tests in conjunction with the possibilities of the Internet is evident. Second, the fact that a doctor from the immediate context of the treating facility is said to have acted as the sperm donor is very remarkable.

1.) DNA tests enable donor tracking

With the trend towards the removal of taboos and the open treatment of sperm donation, the search of children, donors and parents for genetic relationships also established itself.

Across the world, DNA tests and the Internet have been used more and more by those affected in recent years, firstly to prove an inaccurate genetic relationship to a family member and, secondly, to find sperm donors and genetic half-siblings. It is an effective method of undermining the current anonymity regime of reproductive medicine, which up until now has given the medical profession a clear monopoly on information (5). With the increasing establishment of new research methods such as the Internet and DNA tests, it must be clear to everyone involved: The anonymity of sperm donations no longer exists.

Exactly this is a central argument against parents, donors and doctors, to no longer feel as though they are no longer safe, the sperm donor would remain anonymous for the child anyway or the child would not find out about the donation. DNA tests and the Internet are powerful instruments of resistance and empowerment of people who have been conceived by donors when information is withheld from them. The trend towards de-anonymization and the establishment of connections can no longer be stopped.

The German association “Spenderkinder” has reported 18 successful half-siblings and several matches with sperm donors in the last few months. On an international scale, there is the “Donor Sibling Registry” in the USA, which is headed by DI-Netz honorary member Wendy Kramer. In the DSR, with a membership of almost 60,000 people, there have been more than 15,000 matches with genetic half-siblings and donors.

In the current practice of DI, sperm donation is still anonymized vis-à-vis the intended parents. It is essential that you can only get rudimentary information about the donor in advance of treatment, and certainly not about his or her identity. This rule applies even if both parties are interested in getting to know each other before the treatment. This medical practice, in which it seems unthinkable to tell the patient whose semen it is, is likely to become questionable due to the existence of DNA tests, which can also be used by parents to find the child's genetic relationship. With the possibilities of the DNA databases there is increasingly no reason not only to deny the child but also the woman to whom the semen was introduced the information about the sperm donor (6).

2.) Doctors as sperm donors: what are the implications?

In addition to the success report on your own donor tracking, there is a special feature in the Stina case: According to your report, not just any man should have provided his semen. Not just any man who, like most other sperm donors, approached the fertility clinic as a stranger from outside. Rather, it was a doctor who himself worked at the university clinic at the time and, according to his own statements, only helped out two to three times at the request of colleagues when there were bottlenecks in the provision of fresh semen. (At that time there was no cryopreservation.)

Stina's report leaves open the role of the doctor she identified in the clinic and his role in the medical treatment of her mother. If you follow the report, it could theoretically have been any medical student at the clinic, a medical colleague from the neighboring department or a man from the small group of doctors who belonged to the gynecological department and were responsible for treating the mother were.

Treaters and sperm bank operators as sperm donors?

At this point, one can only speculate about the identity of the donor in the special case of Stina, since the author does not disclose the name.

Regardless of the specific individual case, Stina's report raises fundamental questions about what it actually means when a doctor at a clinic, fertility center, sperm bank or gynecological practice donates his semen for the couples who want to have children treated there. We do not know today to what extent this has happened in the past, at any rate it would result in serious legal, health, ethical and psychological issues.

From a legal point of view It can initially be stated that, in contrast to various scandal cases abroad (cf.William Pancost, Cecil Jacobson, Thomas Lippert, Gerald Mortimer, Donald Cline, Berthold Wiesner, Jan Karbaats) not a single court case in Germany has been known in which a doctor is involved treated his patients with his own sperm (8).

In Germany there is no written right to donate sperm by doctors. There are no specific, legal regulations and no case law to orientate yourself on. Although insignificant for the general legal situation, it is nevertheless remarkable that there has so far been no other legal literature in the form of expert reports or articles in specialist journals that theoretically deal with the possible constellations of medical sperm donation.

Only general contractual principles remain.

Donating semen is not a criminal offense for doctors. In principle, a doctor or medical student can also be a sperm donor. Like every other man, he has the fundamental right to make his semen available for reproductive medicine treatments. The German legislator has not yet formulated a law that would prohibit the donation of sperm by doctors - at one's own workplace.

In the guidelines of the Donogene Insemination Working Group (AK DI) founded in 1995, the association of sperm bank operators and reproductive medicine specialists, there is at most a brief provision that is not justified further. There, in the "Guidelines for the Selection of Sperm Donors" from 1995: "The therapist and his employees cannot be considered as donors." (9) and in 2006, the guidelines of the working group finally contain the passage: "All employees of a sperm bank or their relatives cannot act as donors for the sperm bank ”(10). These guidelines are only intended as recommendations; they are not legally binding.

At most, contract law is of further relevance here.

A couple of intended parents who seek treatment assumes that the sperm donation came from a third party. As a rule, this is also explained in the preparatory medical consultation. If it is the doctor himself who donates the semen, then this causes a mistake in the contractual partner through deception. The extent to which damage has occurred would have to be presented to the court later. The error is likely to be causal for the disposal of property, which is made with regard to the treatment costs. The damage could be defined as fidelity damage. It should be clarified to what extent, in addition to the fidelity damage, further material and immaterial damage has occurred (possibly shock damage, damage to the mother's health, the "child as damage" / wrongful birth appears unsuitable here). The damage caused by the doctor would have to be proven by the plaintiff (11).

In in terms of health policy reproductive medicine would be seen in a new light: the long-standing, high and persistent resistance of reproductive medicine to the education of children conceived in this way, to the abolition of the anonymity of sperm donors, and to a retrospective opening of donor registers as well as the refusal of information in individual cases, make a different sense in the new context. Some demands and recommendations on the part of doctors may not have been motivated at all by unselfishly protecting the group of sperm donating third parties from identification. They probably served the purpose of protecting yourself rather than being exposed as a secret sperm donor.

Considerations can be made about the psychological situation of those involved, which are highly speculative, but could be significant for approaching the topic:

If doctors If you use your own seeds to treat fertility patients, they create a space for their reproductive instinct that is not intended for it. The doctor is given tremendous access power by being able to choose unilaterally with whom to reproduce. This is violent towards the patient because the intended parents expect the use of a third party as a donor and the doctor decides unilaterally and without asking whether to be the donor himself. His action is unauthorized, as it means a massive attack, even in the rare event that the intended parents would definitely agree if they were asked, for example because they would like the doctor and would rather have a known donor anyway. This essential consent of the intended parents that the doctor and the donor are the same person cannot simply be assumed by the doctor or, in a paternalistic way, declared to be irrelevant. He is also aware of this, otherwise he would speak openly about it.

The psychological situation of doctors who have used their own semen in donor sperm treatments will be characterized by denial, justification and trivialization. Doctors will not disclose their own sperm donation or that of a colleague on their own initiative. They will only admit it then and only to the extent that they are confronted with evidence such as DNA tests from outside. If a doctor's sperm donation is discovered, he or she will most likely try to describe this as a reckless misstep of the enthusiastic early days of DI, as a one-off exception or as spontaneous help on his part because no fresh sperm was available or the intended sperm donor was not available (12). Perhaps as an idea from his medical colleagues that you would not have actually thought of on your own. Overall, there is likely to be a strong tendency to interpret sperm donation as a selfless blood donation that does not depend on the person of the donor.

If it becomes known that a doctor was once active as a sperm donor, this undermines one's own position and credibility. A doctor would no longer be perceived as an objective professional in public discourse. Even if he considers earlier attitudes that donor anonymity must be preserved as outdated, he will then feel compelled to maintain them in his own interest.

A mother (13), who learns that her doctor was actually the sperm donor for her child, puts this information in a difficult position.

On the one hand, she will not question her child's existence, she will be highly identified with her own child's being. Almost always, mothers and fathers will find their child right and love it just the way it is. You will not want to "exchange" the child, and you will also wish them to have positive thoughts about their parentage. Perhaps the child has grown up a long time ago and they want to leave it alone.

On the other hand, the doctor has massively interfered with her reproductive autonomy as a woman. In principle, reproductive autonomy also means being able to decide for yourself with whom a woman wants to reproduce and with whom she does not. This right of women to reproductive autonomy is in itself attacked by the fact that, in principle, she is not informed about the donor if she so wishes (14). The doctor generally has the authority to decide which donor to choose for which woman. With his own sperm donation, the doctor has the right to reproductive autonomy even more invasively, because the woman does not expect this and was not asked whether she would possibly also consent to the doctor's donation. To have become the object of personal interests without being asked means a high risk that the patient will react to the unsolicited donation of sperm from her doctor with disgust and disgust and a feeling of humiliation (15).

Accepting an anonymous sperm donation is, to a very high degree, a matter of trust on the parents' side. The mother of choice is required to accept the anonymization of the sperm donation if she requests treatment. As DI is currently practiced, you can only be treated if you submit to this medical condition of anonymization and have a certain trust in the doctor / sperm bank. The woman trusts that the sperm donation came from an outsider. Even if patients willingly accept the condition of anonymization of foreign semen, it does not matter to them whether the doctor uses his own semen.

It is unlikely that parents will feel honored by the doctor's sperm donation; the child's parents are much more likely to feel that they have been betrayed and that the trust they have placed in them has been abused in a dependent relationship with the doctor.

Also like a so begotten manAnyone who finds out that his sperm donor (“Bio-Dad”) is his mother's doctor and will deal with this psychologically can by no means be predicted with certainty.

It is quite conceivable that a difficult conflict could arise if a child, while pursuing their (legal) concern to find out the donor's identity, is sooner or later confronted with the fact that the opponent in the (judicial) information procedure is precisely this person is.

The doctor, who does not want to be recognized as a donor because he does not want to lose his reputation, makes himself a no-donor from the start, which is fundamentally disadvantageous for children who want to find out the identity of the donor.

A person conceived in this way may have different feelings towards the doctor. Some may be happy to finally know from which specific man they are descended. In particular, once you have found the person yourself, it may be a strong and satisfying sense of self-efficacy. Against the background of anonymous sperm donation, one might prefer the new situation of at least finding out that it was the doctor than the situation in which the donor remains an unknown (16).

The person conceived in this way could, however, identify with the idea of ​​sperm donation and with the fate of his parents, perhaps just as horrified as they do. If she does not consider the doctor to be a good and honest person, the perception of a genetic "connection" to him will be a burden. An identification with the donor can lead the child into internal conflicts, on the one hand to identify with the donor or to want to identify, perhaps not to jeopardize a hoped-for relationship with him, on the other hand it will not then speak freely about him and his sperm donation or condemn it. The doctor's sperm donation will probably trigger bias in the child.

Requirements of the DI network:

DI-Netz calls on doctors working in reproductive medicine to remember the abstinence requirement in their function as doctors. In the treatment of patients, the implementation of one's own reproductive desires should be excluded (17).

The DI network demands transparency with regard to sperm donations by doctors who work in the field of reproductive medicine!

Doctors working in the field of reproductive medicine should be legally obliged to inform the recipient couples that they are willing to donate sperm. Patients wishing to have children should be given the opportunity to decide for themselves whether they would like to accept the sperm donation from such a doctor. Even if patients willingly accept the condition of anonymizing their donor identity in advance of their treatment, they should be informed, without being asked, about the general condition that there are donors from the treatment area. If a treating reproductive medicine practitioner wants to be a donor, he must be prepared to offer himself personally as a donor to the recipients.

DI-Netz calls for an open debate on sperm donation by doctors. The Donogene Insemination Working Group should also refer to its guidelines again and be open to them, confirm or reject them, or at least justify its decisions and rules.

If doctors have used their own seeds in the treatment of fertility patients in the past, they could contribute to the general discussion by not waiting for an exposure but by initiating it themselves.

DI-Netz calls for the abolition of the sole responsibility of doctors over the practice of donor selection. Currently, the criteria for donor recruitment, donor selection and matching are left to the discretion of the sperm bank employees (18).

Physicians should be required to fully respect the reproductive autonomy of women by informing the patient of the donor's identity if she so wishes and by letting her participate in the donor choice if she so wishes. In principle, it should be made possible for women to turn the anonymized donor unknown to them into a known donor for their child. This would also be a preventive measure against unnoticed use of own semen by the doctor. Mothers have the right not to want to know who the donor of their child is, just as they should be able to make a low-threshold claim to find out who he is.

As a confidence-building measure, DI-Netz recommends that doctors who work in the field of donor sperm treatment register themselves with the known DNA databases in order to avoid frequent fears of DI families that the doctor himself might be the donor for their child To invalidate initiative.

Remarks:

* We thank Dr. Helga Müller, lawyer in Frankfurt and honorary member of the DI network.

(1) www.spenderkinder.de; http://www.spenderkinder.de/ueberuns/mappenundgeschichten/stina/

(2) In a joint publication from 1980, four doctors at the gynecological clinic of the University Hospital Essen reported 415 donor sperm treatments in-house with 290 pregnancies and 74 births in the period from 1976 to 1980. Katzorke, T .; Propping, D .; Tauber, P.F., Ludwig, H. (1980) Artificial Insemination with Donor Sperm (AID): Pregnancies in 290 married couples. The gynecologist. 5, 405-411. See Katzorke, T. et al (1981) Results of Donor Artificial Insemination (AID) in 415 Couples. Int. J. Fertil. 26 (4), 260-266.

(3) The application for legal aid was rejected. Bernard, A. (2014): Making Children. 138; https://openjur.de/u/121544.html

(4) Spenderkinder.de (April 24, 2018) Donors from the Essen University Hospital identified http://www.spenderkinder.de/spender-der-uniklinik-essen-ueber-dna-test-identified/

(5) DNA databases only report the probable degree of relationship, as in Stina's case, who writes of a cousin who is “very likely” related to her, see note 4.

(6) see Kennet, D (2018) Personal genetic testing and the implication for he donor conception community. Bionews. https://www.bionews.org.uk/page_96385; Klotz, M. (2016) ‘Wayward relations: Novel searches of the donor-conceived for genetic kinship’, Medical Anthropology, 35(1): 45-57.

(7) Parents can obtain the identity of the donor following the highest court rulings (BGH, January 28, 2015 - XII ZR 201/13) and with the introduction of the new sperm donor register law from July 2018. But only to assert the child's right to know their parentage, i.e. on behalf of their minor child, as an outgrowth of their parental rights. A separate right to information about the donor's identity, based, for example, on their right to reproductive autonomy, is not regulated by law.

(8) The "Spenderkinder" website reported in April 2018 on the Martin case, which was caused in a Frankfurt practice by the sperm donation of the late doctor Dr. Vladimir Delavre was created (http://www.spenderkinder.de/spender-kind-verbindungen-ueber-dna-test-identisiert/; http://www.spenderkinder.de/verwandtensuche/entstehungsorte-unserer-träger/ cf. Hummel, K. (October 21, 2017) Children of sperm donors - Where are you? Http://www.faz.net/aktuell/gesellschaft/menschen/spenderkinder-auf-der-suche-nach-ihren-wurzeln-15249066.html .)

(9) in Günther, E .; Von Versen, E. (1995) Guidelines for Sperm Donor Selection. Act. Dermatology. 22, 36-37; Section B.8.

(10). Working group amendment of the working group Donogene Insemination (2006) Guidelines of the working group for donogenic insemination for quality assurance of the treatment with donated sperm in Germany http://www.donogene-insemination.de/downloads/Richtl_Druckfassung.pdf; Paragraph 10, p. 25

(11) The punishment of misconduct in the field of reproductive medicine is only insufficiently covered by contract law. This can be made clear in a recent legal dispute (OLG Hamm, judgment of February 19, 2018 - 3 U66 / 16): A mother sued a reproductive medicine doctor because he had not provided semen from the same donor for a sibling, as agreed, but semen from another Donor. The mother was obliged to prove, firstly, to prove a breach of contractual duty by the doctor, secondly, to prove her own damage to health (depression, states of exhaustion and feelings of guilt towards the children who made psychotherapy necessary) which, thirdly, was causally attributable to the "wrong sperm donation" , so that fourthly she was awarded financial damages of € 7,500. The obligation to provide evidence of the medical breach of contract, the personal damage, the causal connection and the condemnation for damages, i.e. the payment of a sum of money by the doctor, is certainly not experienced by many affected as a suitable preventive and sanctioning measure for the perceived injustice.

(12) One should bear in mind that no great damage would have been caused if the doctor had not stepped in. One would have had to send the patient away without treatment and postpone the insemination to a later cycle, which would certainly have been annoying - but it is not a medical emergency.

(13) When it comes to the doctor's donation, it is of course not just the mother's experience that is important, but also that of the father of choice. But this is more complex, also legally. At this point the train of thought can be made clearer in terms of the reproductive rights of the fertilized woman and her psychological situation.

(14) This fundamental possibility of making one's own decision is important, even if (heterosexual) couples who wish to have children currently prefer an anonymous donation in practice. Lesbian couples and solo mothers are more likely to express interest in more donor information and participation. A general offer to choose a so-called open donor would be a step in the right direction to take the needs of fertility patients more seriously than before in the context of regulating sperm donation. see Pennings, G. (2000) The right to choose your donor: a step towards commercialization or a step towards empowering the patient? Human reproduction. Vol 15 No 3, 508-514 .; Ders. (2011) Sperma op maat: een patient rights. Tijdschr. voor Geneeskunde, 67, No. 23, 1154 - 1158.

(15) It is true that even with ordinary donogenic insemination, patients are disgusted with the idea that semen introduced into them was obtained through the masturbation of a stranger. But as soon as a woman decides for the treatment, she agrees to this step of semen collection self-determined and knowingly. Mutual anonymization may enable her to abstract and distance herself from a more precise imagery that could repel her. At the same time, the fact that a gynecologist is allowed to deal with her reproductive organs and their intimacy as part of the treatment is usually only possible if she has given her consent and his actions take place in a professional setting in which rules prevail at the same time ensure distance.

But if the doctor uses his own semen for fertilization of the patient on his own initiative, it is not a matter of any minor medical border crossing, but rather it takes place at the personally significant border of corporeality, intimacy and privacy. If a patient learns about it later, it is quite possible that an imagery of the course intrusively imposes itself on her: She will now live with the mental image of how this doctor must have ejaculated into a cup shortly before her appointment in order to give his patient the result to fertilize this sexual act half an hour later (nowadays half a year). This inner scene becomes even more sexual when the patient insinuates that her practitioner has involved her person in his sexual fantasy activity. The emotion of disgust on the part of the woman would not be an expression of excessive prudishness, but rather indicates that the limits of personal integrity have been exceeded in several ways.

(16) For example, in the film “Offspring” by Barry Stevens (2001) (https://vimeo.com/128603400), those affected expressed their disappointment when it turned out in their case that the doctor Berthold Wiesner was not their donor after all, because so the own donor remained unknown.

(17) Personal interests that do not belong in a doctor-patient relationship would also include the enforcement of a doctor's personal interest in sexual masturbation, confirmation of one's own potency and masculinity, and sexualization of the doctor-patient relationship.

(18) Structurally, there is a clear gap in terms of information and decision-making power even if progressive sperm bank operators give the recipient pairs at least the last choice from several donor profiles or give them little rump information about the donor. It could be discussed whether, in view of this extremely pronounced power of a single doctor, the state should take on more protective obligations than before.