Da Brat and The Latest (Rap) Battle: FDA Expected to Drop Sperm Donation Ban for Gay Men

Shawntae Harris-Dupart — better known as rapper Da Brat — and her wife Jesseca Harris-Dupart wanted to have a baby. With modern assisted reproductive technologies, this should have been simple: they would use one of Jesseca’s eggs and find a sperm donor from one of the dozens of sperm banks in the United States.

But Da Brat and Jesseca quickly discovered that finding a Black sperm donor would be near impossible, especially after potential donors were screened out for genetic traits incompatible with Jesseca’s genetic makeup. Speaking on their television show, the rapper and her wife explained that once the genetic traits were screened, the donor pool went from “thousands to hundreds and maybe one Black person.”

The couple were not alone in their struggle to find a sperm donor that fits their desired profile. According to the The Washington Post, Black sperm donors account for less than 2% percent of all donors at the country’s four largest sperm banks. There are many reasons for this disproportionately small donor pool, including systemic barriers to quality healthcare and longstanding distrust of medical institutions.

One reason is also a decades-old FDA regulation that bans anonymous sperm donations by gay and bisexual men. That could soon change, for the better.

The Wall Street Journal recently reported that the FDA is expected to remove the broad blanket ban and “instead adopt more pointed screening questions to assess HIV risk.” Under the current FDA guidance , if a potential male donor has had sex with another man in the last five years, then the donor is automatically prohibited from donating, regardless of whether the donor used safe sex practices or had a limited number of sexual partners. The sperm donation ban was issued in 2005, part of an expansion on the prohibition of blood donations by gay and bisexual men, which was based on HIV-infection rate data from the 1980s and 1990s. The prohibition on blood donations has since been rescinded.

The American Medical Association (AMA) advocated for the rescission of the blood donation ban, arguing that the ban was based on “outdated blood-screening technology” and adopted during an era when HIV was poorly understood. The AMA has similarly urged the FDA to rescind the sperm donation ban and to eliminate “public policies that do not align with scientific evidence and best ethical practices.”

If the FDA rescinds the blanket sperm donation ban, this could open the door for more donors to help couples seeking to start or expand their families. The Sperm Bank of California reported that of the 243 candidates in the last three years who identified as gay or bisexual, 120 of those were men of color, 20 of whom were Black. If the ban is dropped, aspiring parents like Da Brat could have more options when seeking their ideal sperm donor.

Takeaways

Sperm donors of color are severely underrepresented in the nation’s sperm banks, and the blanket ban on gay and bisexual men from donating sperm contributes to that scarcity. The FDA is expected to eliminate this blanket prohibition and is reportedly expected to release the draft proposal sometime this summer.

Next Steps

Once the new policy is released, there will be a public comment period, allowing interested individuals and organizations to submit comments on the proposed policy on the Federal Register. After the public comment period has ended, the proposal will be reviewed and finalized.

The ArentFox Schiff team will continue to monitor developments regarding this proposal. If you are interested in submitting a public comment on the policy, once released, please contact us with any questions.

Additional research and writing from Sean Worley, a 2024 summer associate in ArentFox Schiff’s Washington, DC office and a law student at Georgetown University Law Center.