I recently caught up with one of my favourite series, Drop Dead Diva, and one of the story lines was that gay men cannot donate sperm. No! I thought, but I checked it out and discovered that the programme took on the 2005 FDA rule that in America, for the past seven years, there’s been a ban on gay sperm donation if the donor admits to having had sex with a man over the past five years. The FDA rule can be found under Title 21, Chapter 1, Subchapter L, Part 1271 of the Code of Federal Regulations.
I found this article by Josh Berman which he wrote for the Huffpost that explains it clearly:
“In truth, there is no reason for this law to be on the books. The screening process in place at federally supervised sperm banks eliminates the need for such discrimination. The tests available now to screen for HIV and other STDs are so effective — over 99 percent — that the logic behind the rule is non-existent. Why ban a gay sperm donor when his sperm can be tested to nearly 100 percent safety levels? A straight man who has had heterosexual relations with an IV drug-using prostitute as little as 24 hours prior to donation could, in effect, be given approval whereas a gay man who has been celibate for four years, three hundred and sixty-four days and twelve hours could be prohibited from giving sperm at an FDA-supervised sperm bank.
In Drop Dead Diva, Tyler Jacob Moore (Shameless) plays Dan Abraham, a gay man who is arrested for donating sperm. Ultimately, Dan is represented by our team of lawyers, who argue the obvious — the only basis for the FDA restriction is homophobia. The available testing eliminates any real risk of contamination and, while the incidence of HIV among the gay community is higher than the general population, so, too, is the incidence of Tay Sachs among certain groups (primarily Ashkenazi Jews, although individuals of Cajun descent and some French Canadians experience a higher incidence than the general population) or Sickle Cell among some segments of the African-American community. However, these groups do not suffer the same illogical restrictions against donation, likely because it is recognized that testing can quickly and efficiently screen out donors who suffer from the disease or who carry the genetic markers for the disease.
In Drop Dead Diva, the series regulars (Jackson Hurst and Kate Levering) rally to Dan’s support. In the courthouse, they surprise the judge with a compelling and logical response to the FDA’s restrictions on sperm donation. They cleverly argue that in today’s day and age, there’s no place for government restrictions when it comes to how we chose to procreate.
Sadly, in the real world, prejudice remains codified by the FDA. The government tells gay men, regardless of HIV status, that they do not want us to donate sperm. Personally, I think it’s time for the FDA to rethink this rule. Drop Dead Diva stars Brooke Elliott, Margaret Cho, Jackson Hurst, Kate Levering, Josh Stamberg, April Bowlby, Carter MacIntyre and Lex Medlin.
