Hands off our testicles!

How can it be a crime to ‘provide sperm without a licence or third-party agreement’? That is what two British men have been found guilty of, after it was discovered that they were acting as ‘sperm brokers’, introducing would-be donors of the white stuff to around 800 women who, for various reasons, could not conceive. Yet every man in Britain who has sex with a woman ‘provides sperm without a licence’ (unless he’s wearing a condom); what’s so different when there’s a middle man involved, a broker, who passes the sperm from the man who produces it to the woman who wants it? Any talk of ‘sperm’ and ‘licences’ in the same breath should set alarm bells ringing.

Nigel Woodforth and Ricky Gage, the two businessmen (or ‘fertility conmen’ as they have been branded by the tabloids), made around £250,000 from their ad hoc sperm-donation scheme. The press has gone all out to make the scheme sound as seedy as possible – it was ‘run from a basement’ for the benefit of ‘desperate women’; the two men first got the idea ‘over a drink in the Slug and Lettuce pub in Reading’ – yet presumably it involved men consensually donating sperm and women consenually paying for it and later injecting it. If Gage and Woodforth had been offering cut-price amputations or under-the-radar gall-stone operations, I could understand the outrage. But neither the production nor the ingestion of sperm is a serious medical procedure; men and women do it all the time in the traditional fashion, in beds, on sofas, in alleyways, far from the prying eyes of the would-be fertility police.

And yet at Southwark Crown Court in London last week, Gage and Woodforth were found guilty of providing sperm without a licence. They will receive their sentences this week. The judge has told them to expect to be banged up.

This bizarre case shines a light on the increasingly stiff (no pun intended) regulation of people’s fertility. For many years, only fertility treatments involving frozen sperm required a licence. That’s fair enough: the long-term storing, freezing and unfreezing of sperm requires expertise, and the organisations that do it should adhere to certain agreed standards. But the provision of fresh sperm – that is, unfrozen sperm, the kind that men carry around with them at all times – was traditionally unregulated. Until 2007, that is. Then, the Human Tissue (Quality and Safety for Human Application) Regulations were introduced, and they included the decree that any provider wanting to ‘procure, test, process or distribute’ fresh sperm also had to hold a licence from the Human Fertilisation and Embryology Authority (HFEA). That is why Gage and Woodforth – who organised the provision of fresh sperm – could be found guilty of a crime.

The legal regulation and potential criminalisation of the ‘procurement’ and ‘distribution’ of fresh sperm take us into dangerous territory. This makes something that men and women do all the time into a potential crime. Women ‘procure’ fresh sperm when they sleep with a man with the intention of getting pregnant; is there really a moral difference if they procure that man’s fresh sperm without sleeping with him? Men ‘distribute’ sperm day in, day out – whether into hankies, condoms or into women whom they love, want to make pregnant, or whatever. How can the distribution of fresh sperm be seriously policed? What is the significant difference if the man ‘distributes’ his sperm into a cup first rather than directly to the woman? The tighter regulation of what men and women do with sperm – which is different to blood, for example, in that it can be produced and distributed without risk of injury – is to invite the policing of what for thousands of years was a simple everyday relation between people.

The discussion of the alleged dangers of Woodforth and Gage’s fresh sperm captures what is behind much of the fury over their antics: official fearfulness about the sex act itself. Fertility experts are disgusted that these two men were providing untested sperm. This sperm is not ‘quarantined’ or tested for ‘bacterial and viral infection’, said one scary-sounding report. ‘These fresh sperm delivery services just fill me with horror. There is no way on earth that they can guarantee that [the sperm] is infection-free’, one expert told the Daily Telegraph.

This looks like a proxy debate that is really about the alleged dangers of sex in general – ‘unsafe sex’, that is – where it is also the case that men and women pass fluids that have not been quarantined or tested for infections. Across the country, on a daily basis, unregulated, unpoliced ‘sperm delivery services’ take place – that is, men and women have sex – and the contemporary view of such interactions as potentially dangerous and diseased has definitely informed the discussion of Woodforth and Gage’s horror-inducing fresh-sperm business. Would Those Who Know Better also like us to require a licence before we are allowed to share sperm in the traditional way? Perhaps we shouldn’t give them ideas – their answer to that question would almost certainly be ‘yes’.

What is happening here is that experts are taking a rather Catholic view of sperm. They are treating fresh sperm almost as something sacred, something which cannot possibly be passed from one party to another without the okay of the overlords of the fertility regulation industry. Ironically, it is likely to have been the overregulation and secular sanctification of fresh sperm that gave rise to a business like Gage and Woodforth’s in the first place. In recent years, new rules have been introduced stipulating that any child produced through sperm donation has a right to know who the donor was – and not surprisingly, this bizarre idea caused something of a crisis in the sperm-donation world, as men became less keen to donate their sperm if they thought that 18 years later the product of their masturbation might knock on their front door and say ‘Hello dad’. The tightening of fertility rules, the treatment of sperm donation as a fatherly act – all of this no doubt contributed to the creation of a space for an enterprise like Gage and Woodforth’s.

People’s fertility is already way too regulated. The HFEA may be one of the bodies set to be hurled on to the Lib-Cons’ ‘bonfire of the quangos’, but first its immense powers of fertility-policing will be distributed to other, already exisiting bodies. We need less regulation of our fertile interactions, not more – and a recognition from the powers-that-be that they have no business poking their Victorian snouts into what they call ‘sperm delivery services’, and the rest of us call relationships.

Brendan O’Neill is editor of spiked. Visit his personal website here.