Insemination rules will be eased by new law

By Stephanie M. Lee

Eight years ago, Maya Scott-Chung gave birth to the girl she and her female partner had been waiting for. To make the conception possible, a friend had handed over his sperm in an artichoke jar — an act that was casual, straightforward and, under federal law, illegal.

Now, the Scott-Chungs once again want to use their friend’s sperm to get pregnant, this time in a legally sanctioned medical clinic. But the Oakland couple are finding the lawful path they’ve chosen to be the far more problematic one.

Under current law, any woman who wants to become pregnant with an acquaintance’s sperm must verify his health in tests and undergo other procedures, rules that the Scott-Chungs view as costly and time-consuming.

On Tuesday, that process will change in California.

That’s when a new law will take effect, making fertility services more accessible for Californians seeking to start a family through nontraditional means. Among those it will help are same-sex female couples, low-income women and single women.

“It removes a lot of barriers so women can become pregnant using the sperm of the donor of their choice,” said Assemblywoman Nancy Skinner, D-Berkeley, who introduced the legislation. It was co-sponsored by Equality California and the National Center for Lesbian Rights.

FDA’s reasoning

The current law is designed to protect women without a traditional male partner from unknowingly ending up with a sexually transmitted disease by using, for example, a friend’s sperm and a turkey baster.

Under rules set up by the U.S. Food and Drug Administration, a donor is required to either freeze and quarantine his sperm for screening or have his blood and urine tested in a medical setting within a week of transferring his sperm to the woman.

The new law aims to ease the frustrations of aspiring mothers like Maya Scott-Chung. She said she didn’t know of the existing rules in 2003, when she began trying to start a family with MeiBeck Scott-Chung, her partner since 1997.

Instead of using a sperm bank, the couple wanted a known donor who shared their collective Asian/Latino heritage and could provide fresh sperm, which would give them the best chance for pregnancy.

In the end, they chose Daniel Bao, a local, gay Chinese man originally from Argentina. He brought a glass artichoke jar with his sperm to their house, and MeiBeck injected its contents into Maya with a syringe. In October 2004, at age 38, she gave birth at home to a daughter, Luna.

Four years later, when the couple wanted another child, they tried at-home insemination once again, but to no avail. So Maya decided to do an intrauterine insemination under a doctor’s supervision. That’s when she learned of the FDA regulations that she said effectively prohibited her from using Bao’s fresh sperm.

Too high a cost

Freezing and quarantining his sperm for six months wouldn’t work, she said, because the cost was unaffordable and she was 42 at the time.

“The thought of paying four to five thousand additional dollars to freeze and quarantine Daniel’s sperm when he was right there, and especially since we’d had a baby with him … it just didn’t really make sense to us,” said Maya, 46, a project development coordinator at a fertility clinic.

To date, she estimates that she and her partner have spent $10,000 on fertility procedures not covered by insurance.

A similar complaint inspired a lawsuit that an Oakland woman brought against the FDA last summer. The woman, a lesbian who wants to conceive with a friend’s sperm without paying for medical services, is arguing that the rules are expensive, bureaucratic and unconstitutional.

The federal law provides for one exception. If the sperm donor is a recipient’s “sexually intimate partner,” in the FDA’s words, he will not have to undergo multiple tests for such diseases as HIV, hepatitis B and C, and syphilis.

The agency does not define what it means by “sexually intimate partner,” but until now it has been used to apply to heterosexual couples in a relationship, according to Skinner’s legislation.

Broader definition

The new law broadens “sexually intimate partner” to include a donor whom the recipient knows and whose sperm she has already used to try to conceive at home. That means the Scott-Chungs’ donor will need to be tested just once to give fresh sperm, as long as Maya signs a waiver. He can be tested multiple times, but only upon her request.

The bill, AB 2356, encountered little organized opposition, except from the California Right to Life Committee, and sailed through the state Legislature in September.

The FDA declined to comment on the new law, citing a pending lawsuit.

The new law puts same-sex couples such as the Scott-Chungs “on the same playing field” as heterosexual couples by giving them equal access to fertility services, said Dr. Mitchell Rosen, director of UCSF’s Fertility Preservation Center.

It also subjects them to the same risks, he noted. Heterosexual couples can transmit diseases when they have sex. Similarly, if a sperm donor gets a disease after being tested, “it’s possible to contract a condition that the recipient would not know about,” Rosen said.

With the new law about to take effect, Maya said, she and her partner have renewed hope for growing their family.

“As someone who really believes in equal fertility access and thinks that everyone who wants to have children should have the ability to do that,” she said, “it’s a very significant moment.”

— Reach Stephanie M. Lee at slee@sfchronicle.com