Natalie Martin argues that buying sperm from the US while outlawing the purchase of sperm from donors within Canada just doesn’t make sense.

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Canada has a sperm problem.

In 2004 Canada’s Assisted Human Reproduction Act made it illegal to pay sperm donors. Health Canada and the Canadian government cite two ethical justifications for banning the sale of sperm. The first worry is that sperm should not be considered a mere commodity. The second is a worry about the health and safety of recipients and the children born from donor sperm.

This ban, along with the introduction of strict regulatory requirements for donors, has had a serious impact on Canada’s sperm supply.

Consider this – there used to be more than 100 banks collecting sperm donations in Canada. As of today, there is one single bank. At ReproMed, Canada’s only sperm bank accepting donations, there are 29 altruistic Canadian donors. These donors cannot meet Canadian demand. So, about 90 percent of the sperm used in Canada comes from American clinics where donors are paid for their sperm.

Photo Credit: Creative Commons. Image Description: A microscopic picture of a human sperm cell.

This raises one worry about the safety of supplementary markets. One 30 million dollar lawsuit claims that an American sperm bank, and its Canadian distributor, misled seven Canadian families about a donor’s identity — including his education, employment, and genetic history. This concern pertains to a lack of adequate regulation.

Conversely, the presence of certain regulations in these markets might also be problematic. For example, a law enshrining donor anonymity might hinder the ability for Canadian children conceived from international sperm to access reliable genetic information. A well-regulated domestic supply would avoid both these worries.

But perhaps Health Canada is correct — commodifying sperm is wrong. If that is the case, then we should think that it is wrong in all jurisdictions, not just in Canada. Worries about commodification will arise in all cases (not just the ones that involve Canadian donors.) Geographical boundaries should not affect our ethical principles.

If you accept the commodification argument, one policy implication would be outlawing the purchase of American sperm in Canada.

And unless alternative, non-commodifying distributive policies are adopted (like an adoption model for gametes), the only ethical way to receive sperm would be as a gift. We might call this a gift economy – where valuables are not sold, but instead gifted from one party to another.

A gift economy in sperm would introduce its own complications. It might drastically limit the availability of sperm for prospective parents. This is especially concerning for individuals who already have difficulty exercising their reproductive autonomy and rely on assisted reproductive practices to do so. It would also limit the choices available to these recipients. Prospective parents have desires about qualities their sperm donor should possess, and relying solely on altruism would obscure their ability to exercise these desires. Consider, for example, the fact that ReproMed’s Donor 3157 is the only Black sperm donor in Canada.

Receiving or giving a gift is also very different from participating in a sale. When you purchase something you have different rights – you can set contractual expectations, ask questions about a product, and so on. In the context of buying sperm, government regulation could further protect both the donor and recipient by restricting donation eligibility or setting compensation limits. Gift markets do not have this benefit.

It seems that consistently prohibiting the commodification of sperm would lead to undesirable results – especially for those who already face barriers in exercising their reproductive autonomy.

Of course, there may be significant ethical worries about how sperm should be sold. One might have valid concerns about coercion of donors, for example, or the perpetuation of harmful social narratives like valuing genetic family ties over non-genetic ones.

Notice that these worries are not inherent or unique to the sale of sperm. We see similar worries expressed in other markets. Consider the labour market, for example. To prevent employee manipulation, restrictions govern overtime pay and mandate break-time. This demonstrates that exploitation can be addressed with careful regulation versus widespread bans.

Other concerns about harmful social narratives reach beyond selling sperm. For example, one might worry that selling sperm reinforces the ideal that families must have or mimic shared genetic traits, or that women should pursue childbearing at any financial cost. The sale of sperm might mirror or exacerbate these kinds of social narratives, but it does not manufacture them. Nor is it responsible for dismantling them. Instead, proper market regulation might prevent harmful narratives from manifesting themselves in our exchanges.

In fact, I argue that most concerns about well-being could be addressed with different regulatory strategies. Surely clinics should have clear standards for who can donate, how often they can donate, what level of consent they must express, and so forth. Notice that these restrictions do not suppose that there is something wrong with selling sperm. Instead, they suggest that there might be something wrong with the ways in which sperm is sold.

Luckily – these are the kinds of things that we could regulate with more Canadian donors.

But, the current lack of sperm donors in Canada makes it clear: altruism is not a compelling enough incentive for people to donate.

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Natalie Martin is a second year PhD student in the philosophy department at the University of Toronto. @natfoundland