Huffpost Business
The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Eugene Volokh Headshot

Sperm Banks, Gays, and Newspapers:

Posted: Updated:
Here's an excerpt from Washington Post story, written by its health reporter:

A new Food and Drug Administration regulation scheduled to go into effect this month calls on sperm banks to reject anonymous donations from men who have been sexually active with other men within five years -- an effort to screen out potential carriers of the AIDS virus. . . .

[T]he long-debated regulation is being attacked as unscientific and bigoted by some gay groups that say the new rule stigmatizes gay men.

"This rule is based on bad science because the AIDS epidemic is an increasingly heterosexual epidemic," said Kevin Cathcart, executive director of Lambda Legal Defense and Education Fund, which has asked the FDA to reconsider.

"We also know that sperm banks can test for HIV very well now and so can screen out any infected donor," he said. "With that in place, why are gay men being rejected?" . . .

So here's the funny thing: The story never says anything about what the FDA's substantive response to this criticism might be. (It says that "When the rule was adopted, acting FDA Commissioner Lester M. Crawford said it was developed with broad input and 'in all cases, we carefully considered the comments we received in the proposed rule and made changes in the final rule when the science supported the change,'" but that's hardly a substantive explanation.)

Nor does the story tell us what (if anything) seems to be the conventional medical wisdom from objective and reputable sources. Isn't that what readers would want to know here? Not just the views of an activist on one side, plus (later in the story) a quote from an operator of a sperm bank that does provide sperm from gay men -- we can get that from a press release. We'd want some sense of, well, what the actual science says here, or at least what the arguments are on both sides.

Now the first quoted assertion -- that "This rule is based on bad science because the AIDS epidemic is an increasingly heterosexual epidemic" -- strikes me as quite unsound. Whether or not the AIDS epidemic in the U.S. is increasingly heterosexual, male homosexuals still have a vastly higher risk of having the virus. The FDA rule apparently excludes IV drug users and other high-risk categories as well as homosexuals; and the most recent numbers I saw, 2003 data from Texas (only one state, I realize, so take this with a grain of salt), seem to reveal a nearly 200 times higher rate of HIV incidence among non-IV-drug-using gay men than among non-IV-drug-using straight men. These are somewhat oversimplified back-of-the-envelope calculations, but even if they're off by a factor of 5, we still have evidence of a vast difference in risk. So I don't see why the Washington Post science reporter would just pass along the quoted assertion without any contrary views.

But what about the argument that "We also know that sperm banks can test for HIV very well now and so can screen out any infected donor" -- "[w]ith that in place, why are gay men being rejected?" That makes much more sense. Maybe HIV tests are certain enough that the sperm banks can efficiently and completely reliable test sperm, for instance, by freezing the sperm, testing the donor six months after the donation -- six months seemingly being the period between infection and (nearly?) certain detectability -- and using the sperm only if the donor comes up clean. Or maybe there's evidence that when sperm banks use normal HIV test procedures, women almost never get infected from insemination, in which case we might not need more rules.

Or maybe not. Maybe the FDA was right to say the following, in response to comments discussing the quarantine-plus-retesting option:

Although it is reasonable to expect that more sensitive nucleic acid amplification testing (NAT) will be available soon for reproductive tissue donors, even that testing may fail to detect early stage HIV and other infections, particularly because the level of viremia may be extremely low in the early stages of infection (Refs. 1, 2, and 3). Moreover, even the best test may fail to provide an accurate test result due to human error in running the test or in linking the test result to the correct donor. Accordingly, FDA believes that, based on the current state of testing and current knowledge about disease transmission, it is necessary to screen for risk factors as well as to test for diseases such as HIV. . . .

(See here for a more detailed quote, and a link to the original. Note that this is from the FDA commentary on the rule that I think the Washington Post is talking about; the newspaper article naturally didn't include links to the underlying documents, so I can't be positive about whether they might be talking about some other version of the rules. Please do let me know if I'm mistaken about this.)

Now I don't have a dog in this race. I have nothing against homosexuality. I think the FDA rules should be based on sound science. I'm perfectly willing to accept scientific evidence that, despite the much higher incidence of HIV among male non-IV-drug-using homosexuals than among male non-IV-drug-using heterosexuals, testing will reduce the risk to nil or nearly nil.

My point is simply this: The Washington Post article doesn't give us any scientific evidence. It gives us argument from a partisan -- which is half unsound and half of unknown merit -- plus a quote from an interested sperm bank, and a general platitude from the FDA. (Nor, as I mentioned, does it give interested readers any links to the underlying information.) I'm not even complaining about bias here; I'm complaining that the newspaper just isn't serving its readers here.

And this is the Washington Post, a leading newspaper. It's sad to see how weak the coverage by reputable, well-funded, serious news organizations can often be.