Reproductive Dreams and Nightmares: Sperm Donation in the Age of At-Home Genetic Testing

Yakovi Gan-Or, Nofar

Recent technological developments surrounding genetic testing pose new challenges to well-established reproductive practices. One current example is the fertility industry’s struggle to maintain gamete donor anonymity against the growing use of direct-to-consumer DNA tests. Consider the widely covered story of Danielle Teuscher, who in 2019 accidentally discovered the identity of her daughter’s anonymous sperm donor after using a 23andMe DNA test. Danielle’s attempt to reach out to the newfound family member was followed by a cease and desist letter from the sperm bank for violating their agreement. In addition, the sperm bank refused to give Danielle the four vials of sperm from the same donor, which she had reserved for future use, thus thwarting her reproductive plans to have genetic siblings for her daughter.

The Teuscher case introduces a type of reproductive dispute that United States courts have not yet resolved. This Article considers several of the new legal questions produced by this set of novel circumstances, about the legal framework through which the dispute should be adjudicated, the nature of the rights at stake, and the harms imposed by forced or confounded procreation. It argues that in the social context of anonymous sperm donation, the contractual approach is a more appropriate—if insufficient—legal prism through which a dispute over the use of donated sperm should be resolved. The context of sperm donation also demands a nuanced treatment of the rights at stake—one that distinguishes, for example, between the right not to be a genetic parent and the right not to be a parent in the legal sense. Furthermore, properly articulating the interests of the parties requires a reassessment of the harm that forced procreation will impose on a person who at least at some point in time agreed to father a child they would not know or care for, as well as the harm imposed on a person denied a child carrying a particular genetic constituency.


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Loyola University Chicago Law Journal

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January 15, 2021