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
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.