Beware Of The Home DNA Kit! You May Find Yourself Being Sued By A Sperm Bank

By Ellen Trachman

You might be one of those people who signs the terms and conditions page without reading it closely. But that’s definitely not the right approach with sperm donor contracts. In addition to the standard provisions of any contract, yours might include clauses that stop you from satisfying your deep-rooted curiosity about the identity of the donor or merely the genetic background of your child.

Once upon a time, that curiosity had no real outlet, and people resigned themselves to living with mystery. But now, with home DNA tests, you can find out quite a bit of information quickly. However, trying to find out this information could get you sued! And the consequences may be worse than just losing money or being sucked into a court case.

Innocent Action? Danielle Teuscher is the mother of a five-year-old daughter conceived with the assistance of donor sperm. She recently came forward about the aftermath of what she believed to be innocent actions. Over the holidays, Teuscher, together with other family members, took home DNA tests to learn about their genetic background. To be sure, this is a popular activity these days. (Note to self, invest in home DNA test companies.)

Teuscher decided to also buy a DNA test for her daughter. Teuscher reports that she was surprised when a person showed up on the results as a close relative of her daughter. She figured out that the person was related to the donor, but not the donor himself. The profile indicated that this individual was “open to contact,” so Teuscher thought it was harmless to reach out. Teuscher introduced herself and her daughter, to see if the relative was interested in further communication. Teuscher received an ominous reply that simply said, “I don’t understand.” Teuscher did not pursue contact further.

$20,000 and Four Vials. But that was not the end of it. The next thing she knew, Teuscher received a cease and desist letter from Northwest Cryobank, the sperm bank which provided the donated sperm used to conceive her daughter. Northwest Cryobank demanded that Teuscher immediately cease and desist any attempts at contact with the donor, or even the donor’s relatives. The letter threatened to seek liquidated damages of $20,000, and informed her that they were taking back the remaining four vials of sperm that Teuscher had purchased. Unsurprisingly, this was the only sperm that she owned that was related to her daughter.

CBS reports that after the network reached out to Northwest Cryobank, they were informed that the bank would be refunding Teuscher’s money for the vials, but that they would not be returning use of the vials to her. Teuscher was devastated. She says that she intended to use those vials to conceive another child that would be fully genetically related to her daughter. Now that hoped-for sibling is not a possibility for her daughter or her.

In the Sperm Bank’s Defense. Northwest Cryobank further elaborated to CBS News that it does not prohibit DNA testing, but that “concern arises when one uses DNA test results to contact a donor and/or his family.” Northwest also points out that their clients have contractually agreed not to seek out the identity or attempt to contact the donors or the donors’ families. That’s because Northwest Cryobank protects the anonymity of its donors, and Northwest Cryobank has likely relied on those contractual promises to recruit donors, and to assure sperm donors that they will remain anonymous.

Are DNA Mapping Companies to Blame? I spoke with Dr. Betsy Cairo, who is the Founder and Director of Cryogam Colorado, a sperm bank not involved in this story (luckily!). Cairo thought “this case should be a wake-up call to everyone sending their DNA off to publicly-traded companies. People don’t understand that they are losing control and privacy in their own genetic history, as well as that of their family members.” She also expected a lot of people who engaged in these tests to end up disappointed. First, because the tests are known to be lacking in accuracy. And second, because of the emotional toll that can come from having one’s family history or background contradicted or disproven.  It might even affect your presidential campaign!

No Regulation. Some countries, such as the United Kingdom and Australia, have done away with the concept of an anonymous donor. Instead, donor-conceived children always have the right to know the donor’s identity. But the U.S. has taken little action when it comes to regulating gamete donation. It hasn’t even seriously considered the common and popular legal restriction of allowing only a certain number of children to be conceived from one donor’s DNA. (Germany, for example, has a cap of 15 children per donor.) We know that some donor-conceived children in the U.S. from popular donors are finding themselves with 100 or more half-siblings.

The Child Can’t Breach The Contract. The harsh ending for Teuscher is regrettable. And Northwest Cryobank — and all sperm banks for that matter — can hardly promise that their donors will be anonymous forever. Someday, the donor-conceived child, who never signed any contract, may stumble onto a DNA test when they are an adult. So donors are on borrowed time in this context.

Nevertheless, a lot of people in this world wouldn’t be alive today without amazing sperm donors. Don’t stop donating. Let’s all just do it with open eyes, and with the goal of acting in the best interest of future donor-conceived children.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.