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How Expensive Will Colorado Sperm Be, Come 2025? – Above the Law

Back
in
May
2022,
Gov.
Jared
Polis
signed
a
first-of-its-kind
(for
the
United
States)

law

regulating
the
use
of
donor
eggs
and
sperm
for
Colorado
residents
and
for
all
fertility
treatments
in
Colorado.
The
new
regulations
included
the
elimination
of
anonymous
sperm
and
egg
donation
(at
18,
offspring
will
have
the
right
to
know
the
donor’s
identity);
limiting
the
number
of
families
that
can
use
the
same
donor
to
conceive
to
no
more
than
25;
and
requiring
licensing
by
all
third
parties
(matching
agencies,
sperm
banks,
and
fertility
clinics)
working
with
gametes

eggs
and
sperm

from
a
donor
unknown
to
the
recipients
in
fertility
treatments,
among
others.

The
law
is
set
to
go
into
effect
on
January
1,
2025.
However,
that
date
may
be
pushed
to
July
1,
2025,
if
a
fix-it

bill
,
up
for
a
final
legislative
vote
today,
May
8,
2024,
passes.

In
the
meantime,
the
Colorado
Department
of
Public
Health
and
Environment
(CDPHE),
the
arm
of
the
state
tasked
with
overseeing
the
new
law,
has
been
hard
at
work
crafting
rules
to
implement
its
provisions
amidst
big
questions
about
how
the
new
law
will
work,
as
well
as
what
the
effects
will
be.
The
controversial
proposed
rules
are
scheduled
to

be
heard

and
put
up
for
a
vote
before
the
Colorado
Department
of
Health
on
May
15,
2024.


Taming
The
Wild
West

The
world
of
fertility
treatments,
and
especially
those
in
the
ever-progressing
assisted
reproductive
technology
field,
is
frequently
referred
to
as
the
“Wild
West.”
That’s
generally
due
to
the
lack
of
comprehensive
regulations
on
the
industry.
Without
a
consistent
regulatory
regime,
some
pretty
shocking
scenarios
have
become
all
too
familiar

such
as
donor-conceived
persons
taking
home
DNA
tests
and
finding
out
that
they
have
50
or
100
genetic
half-siblings!
The
leading
group
behind
the
law
set
to
go
into
effect

the

U.S.
Donor
Conceived
Counsel


advocates
for
the
urgent
need
for
regulation
to
put
an
end
to
unethical
practices,
and
focuses
on
the
rights
and
interests
of
those
born
from
assisted
reproduction.


The
Report

In
a
report
dated
March
20,
2024,
from
the
CDPHE
to
the
members
of
the
Colorado
State
Board
of
Health,
with
the
proposed
rules
for
approval,
the
CDPHE
laid
out
its
efforts
to
speak
with
stakeholders
(disclosure:
I
show
up
in
this
report),
the
expected
costs
and
benefits
of
the
law,
as
well
as
a
number
of
the
controversial
points
where
stakeholders
could
not
find
agreement.


An
Extreme
Jump
In
Costs? 

Among
the
more
surprising
items
in
the
report
is
a
discussion
of
increased
costs.
The
report
describes
that
stakeholders
noted
that
if
gamete
agencies,
banks,
and
clinics
choose
to
leave
Colorado,
it
may
be
significantly
more
expensive
for
families
to
obtain
gametes,
potentially
preventing
lower-income
families
from
being
able
to
access
donated
gametes.
“As
an
example,
according
to
one
gamete
bank’s
website,
anonymous
donor
sperm
costs
$1,195.
Sperm
with
donor
identity
disclosure
costs
$2,195.


Sperm
that
will
only
be
provided
to
2-10
families
costs
$35,000

(emphasis
added).
Wow.
That
is
a
huge
jump.
Of
course,
the
limit
under
the
Colorado
law
is
25,
not
10,
so
$14,000?
That
can’t
be
right.
Right?


Important
Benefits

Of
course,
the
report
also
describes
the
potential
positive
outcomes,
including:

  • greater
    awareness
    of
    the
    process
    and
    potential
    risks
    of
    donation
    for
    potential
    gamete
    donors.
  • greater
    awareness
    among
    recipient
    parents
    about
    communicating
    biological
    origins
    with
    donor-conceived
    children.
  • greater
    awareness
    of
    potential
    medical
    problems
    for
    donor-conceived
    people
    and
    families.
  • fewer
    children
    from
    a
    single
    donor.
  • greater
    accountability
    and
    transparency
    from
    industry.
  • protection
    from
    unknown
    health
    effects
    from
    frequent
    egg
    donation.

Those
are
important
benefits,
even
if
some
are
intangible
or
hard
to
quantify!


All
In
The
Details?

Given
the
lack
of
precedent,
it
is
no
surprise
that
there
is
disagreement
between
stakeholders
as
to
the
meaning
and
intention
of
some
of
the
language
of
the
new
law.
Many
of
the
issues
that
the
CDPHE
encountered
centered
on
the
most
basic
of
proposed
terms
and
definitions.
Among
these
were
questions
on
how
to
define
a
“family,”
what
does
“unknown”
mean
in
this
context,
as
well
as
what
counts
as
“matching”
to
be
subject
to
the
regulations.


  • What
    Is
    A
    “Family?”

    That’s
    a
    pretty
    big
    question.
    But
    for
    the
    purposes
    of
    the
    law,
    the
    issue
    is
    specific
    to
    the
    requirement
    that
    any
    given
    donor’s
    sperm
    or
    eggs
    not
    be
    used
    with
    more
    than
    25
    “families.”
    The
    proposed
    rules
    define
    a
    family
    as
    “a
    unit
    of
    one
    or
    more
    parents
    and
    the
    children
    they
    parent.
    This
    includes
    new
    partners
    of
    anyone
    already
    parenting
    a
    child
    conceived
    with
    donor
    gametes.”
    The
    report
    notes
    that
    the
    definition
    of
    family
    does
    not
    define
    the
    word
    “parent”
    (either
    the
    noun
    or
    verb),
    but
    that
    this
    was
    intentional.
    “Further
    narrowing
    of
    the
    definition
    of
    ‘family’
    by
    defining
    ‘parent’
    may
    harm
    families
    with
    donor-conceived
    children,
    creating
    legal
    burdens
    for
    families
    with
    different
    structures
    and
    potentially
    preventing
    siblings
    from
    being
    created
    from
    the
    same
    donor’s
    gametes.”
    Flexibility
    and
    acknowledging
    different
    family
    structures
    sounds
    good.
    But
    does
    that
    leave
    regulated
    entities
    vulnerable
    to
    the
    $20,000
    a
    day
    penalty
    for
    noncompliance
    if
    they
    count
    a
    family
    differently
    than
    the
    CDPHE?

  • What
    Does
    “Unknown”
    Mean?

    The
    law

    does
    not

    apply
    to
    sperm
    or
    egg
    donation
    arrangements
    where
    a
    person
    is
    offering
    to
    donate
    to
    a
    friend
    or
    family
    member
    or
    even
    parties
    that
    meet
    on
    social
    media

    aka
    where
    the
    parties
    are
    “known”
    to
    each
    other.
    The
    law
    only
    applies
    to
    sperm
    and
    egg
    donations
    from
    “unknown”
    donors.
    The
    term
    is
    not
    defined
    in
    the
    law.
    The
    CDPHE
    report
    explains
    that
    a
    definition
    of
    unknown
    was
    added
    to
    “prevent
    entities
    from
    seeking
    to
    circumvent
    the
    law
    trying
    to
    categorize
    their
    donations
    as
    ‘known.’”
    The
    proposed
    definition
    provides
    that
    “in
    the
    context
    of
    deciding
    whether
    a
    donor
    is
    ‘unknown’
    to
    the
    recipient
    family,
    a
    donor
    and
    recipient
    parents
    are
    ‘unknown’
    to
    each
    other
    if
    the
    licensed
    entity
    initiated
    or
    facilitated
    the
    match
    or
    connection.”
    In
    other
    words,
    even
    if
    the
    bank,
    clinic,
    or
    agency
    allowed
    the
    parties
    to
    meet
    and
    fully
    know
    all
    information
    about
    each
    other
    before
    the
    donation
    is
    made,
    the
    donation
    would
    still
    be
    considered
    unknown
    for
    the
    purposes
    of
    the
    regulation.
    However,
    the
    fix-it
    bill
    would
    alter
    this
    definition
    to
    exclude
    donors
    and
    recipient
    parents
    who
    mutually
    exchange
    identifying
    information.

  • What’s
    A
    “Match”?

    For
    professionals
    that
    work
    with
    sperm
    donation,
    the
    proposed
    definition
    of
    a
    match
    was
    perhaps
    the
    most
    surprising.
    The
    term
    isn’t
    really
    used
    in
    the
    sperm-donation
    context.
    At
    least
    in
    the
    real
    world
    outside
    the
    text
    of
    the
    law.
    For
    most
    sperm-donation
    recipients,
    at
    the
    time
    the
    recipients
    choose
    their
    donor,
    the
    sperm
    has
    already
    been
    collected
    from
    a
    donor,
    tested
    by
    a
    bank,
    and
    stored.
    When
    the
    recipient
    chooses
    the
    donor,
    the
    sperm
    is
    then
    purchased
    and
    shipped.

So,
is
the
purchasing
“matching”?
According
to
the
proposed
definitions,
yes.

Per
the
CDPHE
report,
the
proposed
definition
of
“matches”
was
expanded
to
enable
a
family
with
a
donor-conceived
child
to
be
able
to
continue
using
the
same
donor’s
gametes
for
every
child
in
the
family,
even
if
the
gametes
were
collected
prior
to
the
effective
date
of
the
law.

But
what
does
that
mean
for
all
sperm
collected
prior
to
January
1,
2025,
or
other
effective
date?
(Or
at
least
prior
to
the
ability
of
the
banks
to
comply
with
the
regulations
given
that
the
educational
material,
for
example,
required
to
be
provided
to
donors
prior
to
donation,
has
not
yet
been
produced.)
None
of
the
stored
sperm
can
be
sold
in
Colorado
or
to
Coloradans.
However,
the
fix-it
bill
would
adjust
a
match
to
mean
when
“an
intended
recipient
parent
selects
a
specific
potential
donor,
or
agrees
to
receive
a
specific
potential
donor’s
gametes,

prior
to
the
collection
of
the
gametes
.”

Phew.
It’s
hard
not
to
predict
a
rough
transition
period.

Is
there
a
silver
lining?
As
pointed
out
to
me
by
leading
United
Kingdom
assisted
reproductive
technology
attorney

Nathalie
Gamble
,
and
as

reported

in
2007,
when
the
U.K.
passed
a
new
law
removing
donor
anonymity,
instead
of
the
feared
result
of
deterring
new
donations,
the
number
of
men
registered
as
sperm
donors
increased!

While
concern
for
the
unknown
and
untested
continues
for
entities
subject
to
the
regulation,
as
well
as
those
who
may
need
donated
gametes
for
their
families,
maybe
2025
will
surprise
us
all.




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.