Racial classification in assisted reproduction.

• Author: Fox, Dov

INTRODUCTION I. RACE AND REPRODUCTION A. Free Market Sperm Donation B. Race-Conscious Donor Catalogs II. THE EXPRESSIVE DIMENSION OF RACIAL DISCRIMINATION A. Discriminatory Intent and Discriminatory Effects B. Discriminatory Expression III. THE MORAL LOGIC OF DONOR CLASSIFICATION A. The Social Meaning of Reproducing Race B. The Architecture of Reproductive Choice CONCLUSION INTRODUCTION

Few choices matter more to us than those we make about the person with whom we will share a life or start a family. When having children involves assisted reproduction, selecting an egg or sperm donor occasions similar gravity. Such decisions typically bring to bear a patchwork of preferences about the particular physique, disposition, or values we find desirable in a romantic or procreative partner. To many, race matters. Just as some people in the search for companionship are looking for a significant other who shares their racial background, many of those who wish to become parents would prefer a child whose racial features resemble their own.

To help those who use donor insemination have a child of a particular race, sperm banks routinely catalog sperm donors on racial grounds. Twenty-three of the twenty-eight sperm banks operating in the United States provide aspiring parents with information about donor skin color, and the largest banks organize sperm donor directories into discrete sections on the basis of race. This practice of race-conscious donor classification invites us to rethink those racial preferences we commonly take for granted within intimate spheres of association. Insofar as race tends to reproduce itself within the family unit, race-conscious donor decisionmaking serves as a promising point of departure from which to ask whether and how our multiracial democracy should seek to preserve or diminish our collective self-identification with racial solidarities.

This Note proceeds in three parts. Part I describes the practice of racial classification by the world's largest sperm bank. Part II argues that antidiscrimination arguments about bad intentions and bad consequences struggle to make sense of the race-conscious way that sperm banks design donor catalogs and online search functions. This suggests that certain classes of discriminatory behavior require a richer moral vocabulary than traditional frameworks allow. In these cases, we do well to examine what might be called the expressive dimension of wrongful discrimination, which turns on whether a rule or action instantiates public values that characteristically erode worthy forms of social recognition.

Part III works out the social meaning of racial classification in assisted reproduction by reference to similar classifications in the more familiar settings of voting and dating. These analogies help us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. This Part argues that racial classifications marked by innocent motives and benign effects give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive-choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.

1. RACE AND REPRODUCTION

   While judges and scholars have filled volumes with deliberation about the moral and legal status of private discrimination in contract, property, employment, and torts, (1) few have addressed race-based decisionmaking in the contexts of romance and family, (2) and none has considered the racial classification of gamete donors in assisted reproduction. (3) Such prospects are no longer futuristic but familiar. (4) Advances in molecular biology equip parents to choose from among a range of traits--including race--in their child-to-be. (5) With male fertility rates on the decline (6) and the advent of cryopreservation techniques that allow semen to be frozen and then fertilized years later, (7) donor insemination became a thriving--and largely unregulated--industry by the 1980s. (8) Today, facilities that collect, store, and sell sperm compete for business among infertile couples and single women seeking to have a child who is genetically related to at least one parent. (9)

   1. Free Market Sperm Donation

      The world's leading sperm bank, California Cryobank, Inc. Reproductive Tissue Services, has facilitated thousands of births in fifty states and more than thirty countries, (10) with annual sales volume of $5-10 million. (11) Founded in 1977 as a storage facility for frozen tissues, California Cryobank began offering reproductive services in 1993. (12) The company receives no public funds. (13) Its offices are in Cambridge, between MIT and Harvard, in Palo Alto, not far from Stanford and Berkeley, and in Los Angeles, home to USC and UCLA. (14) At these and other nearby campuses, Cryobank recruiters pass out postcard-sized flyers that read: "Got Sperm? ... make up to $900 per month." (15) California Cryobank advertises in university newspapers and on websites trafficked by college students. (16) The company also has a Facebook page that features promotional plugs such as: "Earn up to $100 per donation. Learn all about compensation and benefits at www.spermbank.com." (17) These marketing efforts bear good fruit. The number of men applying to donate in 2008 increased by 1156 candidates, or 15%, over 2007 levels. (18)

      Cryobank's website boasts a "rigorous screening" and selection process for donor applicants, (19) "less than 1%" of whom are accepted for contribution of genetic material. (20) The company's sperm catalog includes donor information across a wide range of traits, including height, weight, education, occupation, religion, ethnic origin, facial features, eye and hair color, hair texture, skin tone, and race. (21) Additional donor information, such as medical history, SAT scores, personal essays, handwriting samples, baby photos, audiotapes, and personality assessments can be obtained for an extra fee. (22) Donor insemination no longer requires that clients even visit the sperm bank in person or speak with representatives by phone; in September 2008, Cryobank added internet purchasing, frozen delivery, and special FedEx rates, becoming the first sperm bank to offer full online ordering, storage, and direct shipping. (23)

      The company is not trying to produce people of any particular type. (24) Cryobank cofounder Dr. Cappy Rothman dissociates the company's profit motives from the mission of a former California sperm bank, the Repository for Germinal Choice, which, beginning in 1980, solicited sperm from Nobel Prize-winning scientists with the goal of creating "genius babies." (25) The "Nobel Prize Sperm Bank" was founded by Robert Graham, a eugenic philanthropist who sought to impede the rise of "retrograde humans" by improving the world's "germ plasm." (26) Dr. Rothman wants nothing to do with Graham's designs on population engineering: "[Graham's] eugenics, his perception of where the human race should go, they were terrible." (27) Rothman rejects the idea that sperm banks should promote a template for the human form. He and cofounder Dr. Charles Sims instead embrace a "client-driven" system that leaves decisions about donor selection to individual parents. (28) "Whatever [parents] want is their choice, and what we try to do is give them as much choice as possible," (29) Rothman confirms, noting that "[o]ne woman wanted a water-polo player." (30) Shopping for a donor is little different, he argues, from looking for a partner: "[A]ny single woman ... dating for a husband, or looking for a genetic source for her child, does the same thing.... [S]he dates, she looks, there's some desires, fantasies. We try to provide a large donor pool, so the same thing can take place." (31) A "genetic supermarket" of the kind that California Cryobank seeks to provide "has the great virtue," philosopher Robert Nozick argued, "that it involves no centralized decision fixing the futures of human type(s)." (32) The company targets donors with the "kind of background that appeals to customers," (33) confirms Sims. "We would like a donor that you wouldn't be ashamed of if your daughter married him." (34) Parents tend to prefer donors who are approximately six feet tall and college graduates, with brown eyes and dimples. (35) But "[i]f our customers wanted high school dropouts," Rothman notes, "we would give them high-school dropouts." (36)

   2. Race-Conscious Donor Catalogs

      Race is important to many prospective parents. (37) White donors are in greater demand than donors of any other race, (38) and black donors are especially underrepresented among Cryobank's inventory. (39) There are seven black donors among the 312 in Cryobank's April-May-June 2009 Donor Catalog, meaning blacks comprise approximately two percent of the donor pool, compared with 13.5% of blacks in the general population. (40) This racial disparity among sperm donors reflects, in large part, the higher proportion of whites among those who use assisted reproduction, (41) and the common desire among these parents to have a child (and thus a donor) who more closely resembles their own (racially phenotypic) features. (42)

      California Cryobank adopts measures that reflect the racial preferences of its consumers. (43) The company's donor catalog is prominently organized according to race, with separate sections devoted to "Caucasian Donors," "Black/African American Donors," "Asian Donors," "Jewish Donors," and "Other Ancestries Donors." (44) A message appears in bold font at the top of each catalog page identifying the racial...