Earlier this year, we learned about the shocking case of Danielle Teuscher, and what she thought was the innocent activity of using a home DNA kit for her and her five-year-old daughter. You know, just like the rest of America is doing. Given that her child was conceived with the help of an unknown sperm donor, she thought it would be fun and informative to learn more about her daughter’s background and origins. She had no idea what a mess she was in for.
After the results to the DNA test came back, 23andMe identified a paternal grandmother of her daughter (aka the sperm donor’s mother) that was “open to contact” on the genealogy site. Teuscher sent a message through 23andMe’s portal, where she said that they were related and also open to contact. The surprised grandmother sent a confused message back. Teuscher apologized, and that was the end of their contact. It was not, however, the end of the saga to come. Two weeks later, Teuscher received a cease-and-desist letter from NW Cryobank, the sperm bank where she had purchased the donor sperm that had helped her conceive her daughter.
The letter notified Teuscher that she was in “flagrant violation” of the agreement she had signed with them. Pursuant to the liquidated damages clause barring such contact, the sperm bank said, they were entitled to at least $20,000 in damages from her. That was $10,000 for every breach whereby she failed to live up to her agreement that she would not “seek or make any effort to obtain any information not directly provided through NW Cryobank concerning the identity, background, or whereabouts of the Donor at any time and from any source whether directly or indirectly and/or by any means.” Wait, why two breaches? Well, the sperm bank counted merely having her daughter take a DNA test as one breach, and the message to the donor’s mother as the second breach.
It Gets Worse
The cease-and-desist letter didn’t just mention the $20,000. It also stated:
Moreover, we hereby notify you that as a direct result of your flagrant and material breach of the Agreement we are revoking your right to receive the four (4) additional vials of Donor’s sperm that you purchased. No refund will be given.
(The letter was wrong. Teuscher actually still had five vials of sperm, not four, still at the bank.)
The sperm also cut off Teuscher’s access to her online portal — unless she signed another agreement with the bank severely limiting her rights to testing purchased DNA and exonerating the bank for not providing medical information to donor recipients. The portal is used to access any updated medical information from the donor, as well as to communicate with other parents who conceived children using the same donor. Teuscher was now — absent signing the new agreement — unable to access any medical updates that could affect her child’s health.
Mom Sues Sperm Bank
Like any good American, what else could Teuscher do but, of course, sue. This summer, Teuscher filed suit against NW Cryobank in federal court in the Eastern District of Washington. Her arguments are thought-provoking and compelling.
Can They Take the Sperm Back?!
In her lawsuit, Teuscher is asking the court to grant an injunction against NW Cryobank for an immediate return of her property — the donor sperm vials. To her, the vials are her potential future children, fully genetically related to her daughter. She notes that nowhere in any of the agreements she signed with the sperm bank did it specify they could confiscate the sperm they were storing. They could, under the storage contract, terminate their duty to store the client’s gametes when “the customer or their doctor requests the release of the gametes, upon the written direction of the customer to destroy the gametes, or when payment is not delivered to NW Cryo.” Those conditions all seem fair. But none of those circumstances apply here.
Thirty years ago, in York v. Jones, a federal court established a now well-examined and frequently followed precedent concerning property rights to embryos. The court ruled against a fertility clinic that refused to release a couple’s embryos to them to be transferred to another clinic. The court deemed the clinic a “bailee,” and required it to return the plaintiffs’ property. Here, Teuscher clearly had ownership rights to the sperm specimens she purchased. NW Cryobank, like the Jones clinic, was merely holding these vials in storage, as a bailee. I’m not sure where NW Cryobank believed they derived the right to dispossess Teuscher of her property, even if she did violate their agreement.
Violations of Public Policy?
Teuscher further argues that the court should find that it’s against public policy for the sperm bank to prevent a donor-conceived person (or their parent on their behalf) from accessing their DNA information. She points to declarations by the U.S. Surgeon General’s Office in their Family Health History campaign encouraging everyone to trace illnesses suffered by blood relatives in order to assist their doctor in taking action to protect their health.
I can see NW Cryobank’s argument against contacting the sperm donor’s relatives. But it seems seriously problematic to claim that it was a violation of their contract to merely take the DNA test in the first place. We have a right to our own information, right? DNA, by its very nature, also reveals interconnected information about others. This, admittedly, has led to a number of problems and more information than anyone ever anticipated coming to light. But blocking off access to this type of critical information cannot possibly be the right answer.
I empathize that sperm banks previously assured their donors anonymity, and now those assurances are worthless. Clearly all sperm banks (and those facilitating egg and embryo donations) need to have long ago stopped making such assurances. Everyone now knows anonymity is not a promise anyone can keep. My unsolicited advice for sperm banks: when these situations arise, don’t go nuclear on your purchasers and their children. Explain to the donors, when they complain, that the world has changed. Information is out there. Offer mental health and educational resources on being a donor now identified by offspring. You can pay for those services with all the money saved from not sending cease-and-desist letters and not needing to defend against Teuscher-type lawsuits.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.