Welcome to ASRM Today, a podcast that takes a deeper dive into the current topics in reproductive medicine. I'm Jeffrey Hayes, and today on the show, we're discussing the topic of sperm mixing. Joining me for this discussion is my co-host, Dr. Lowell Koo.
How are you today, good sir? Hi, everyone. Doing great. So glad to be here.
We are excited for this topic today. Absolutely. Our guests today are Dr. Courtney Marsh, who is a reproductive endocrinologist at the University of Kansas School of Medicine.
She became interested in helping build families as a high school student working the front desk at a fertility clinic in Wichita, Kansas. After medical school at the University of Kansas School of Medicine in OBGYN residency at Emory University, she went to University of Michigan for fellowship. Upon returning to Kansas City, she was able to help build a fertility program with inclusive care to all individuals interested in building a family.
Dr. Marsh enjoys tennis and baking in her free time. She has a lovely husband who is a physician at a nursing home and two sons who will both be teenagers this coming July. Welcome to the show, Dr. Marsh.
Hello, thanks for having me. Also joining us is Joanna Beck Wilkinson, who has practiced exclusively in family building law for more than 17 years. She began her career at a contested adoption firm in the San Francisco Bay Area and later worked in boutique private adoption practice in Indianapolis before joining Professor Mary Beck's practice in 2008.
Today Joanna is a founding member of Foster plus Bloom Family Formation Law Group based in St. Louis, Missouri. Joanna regularly guest lectures at Washington University School of Law and the University of Missouri School of Law and has spoken nationally and internationally on assisted reproduction and adoption law. In 2022, she co-authored a brief of amicus curiae to the United States Supreme Court that was cited in the court's majority opinion.
In 2024, she authored the Missouri Bar Deaths Book Chapter on Parentage. She is licensed in Missouri, Illinois, Arkansas, and Kansas and before the Supreme Court of the United States. Joanna is a fellow of the Academy of Adoption and Assisted Reproductive Attorneys and a member of ABA's ART section and of the American Society for Reproductive Medicine's legal professional group.
Welcome to the show, Joanna. Hi. Thanks for having me.
Wonderful. Wonderful. Well, Dr. Koo, do you want to get things kicked off today? Yeah, we have a really exciting topic to discuss today.
It's all about mixed sperm samples. So as we have a lot of different audience members, range from physicians to embryologists to nurses. If you just start off with saying or answering, what exactly is a mixed sperm sample? What does that mean exactly? Great.
I can kind of tackle that question. So mixed sperm samples can be used in a variety of situations. So commonly scenarios would be if you have two males in a same-sex relationship and they're wanting to have children and not know exactly who the parent would be, you can mix sperm samples to do something called an IUI, or it's called an intrauterine insemination, where the sperm samples from the two would be mixed together and then placed into someone else's uterus.
They would be using their own eggs as well. And then that would be like a traditional surrogacy and set up situation that way. Another scenario may be some patient with severe male factor infertility where the sperm sample is very low, too low to do something like an intrauterine insemination or IUI.
So less than 10 million and the parentage isn't desired to be known. So it's mixed with donor sperm sample from an agency or from a known donor. And then it would be put into the intended parent or the partner, their uterus.
This could also be used in the situation of in vitro fertilization or IVF. So typically when we inseminate or fertilize eggs, we can do it with a conventional insemination where we take a sample of sperm and wash it and put it with the egg and let it fertilize overnight. It takes about 18 hours.
So that could be done with mixing the sperm samples beforehand, or you could have half of the sperm from one sample and half from the other sample and put together with the egg. So like 50,000 of each if you're doing conventional insemination. So those are kind of, in my mind, the typical ways we would think about sperm mixing to build a family.
That is fantastic. From a medical standpoint of view, when you mix two samples from two different individuals together, are there any sort of antibodies that might sort of fight each other? Patients ask me, do the sperm fight each other or are they just compatible? What are your thoughts there? Yeah, I mean, there is a haplotolerance with a pregnancy in general. So the body is used to having foreign DNA be a part of a pregnancy.
And so that is a natural part of a pregnancy. So to my knowledge, having two sources of the sperm would not cause immunologic issues that I know of. Joanna, I want to ask you then, are there some legal considerations that people need to be aware of or that the profession needs to be aware of when going about using mixed sperm as a process? I had really considered this possibility more within the context of a same-sex couple who had sort of deliberate genetic ambiguity in that frame of mind.
But when I think about it in the context of using a donor and mixing a donor's sperm with an intended father, I suppose there are probably fewer legal implications in that respect because many states have some version of what we call an AI statute or artificial insemination statute that just says, if a married couple go into a clinic and they both sign consents and they obtain donor sperm and a physician conducts the insemination, then the husband is presumed under law to be the father, even if he's not the genetic father. So if we were in one of those states and there are quite a few, then the husband is going to be presumed father as long as he signed that consent in the clinic, no matter what. And so I guess in those contexts, it may not actually matter.
When we're talking about same-sex male couple who, again, are aiming for genetic ambiguity, it generally does matter. This is a very state-specific sort of analysis because family law varies so much from state to state. But with parentage law, even under the new UPA, what we call RUPA, that quite a few states have adopted, while it doesn't require that the parties disclose which father is the genetic father, the legal framework usually ends up operating to require it.
So even though in theory it's not required, it is often sort of logistically required. And then another really important consideration for the same-sex couples is the adoption consideration. So for decades, most of us were helping them get what we call parentage orders that should certainly suffice, but the political landscape has changed and same-sex couples have additional concerns nowadays.
And so many of them are considering doing what we call sort of a belt and suspenders approach such that they do what we would call confirmatory or step or second parent adoption after the parentage action. And because most adoption statutes have not evolved to contemplate a same-sex adoption, they do require the disclosure of the genetic parent. Dr. Marsh, how common is it in your experience that people choose to do mixed sperm as part of the procedure? I was just talking about this with our embryology team, and I am not super young.
I like to think I'm also not super old, but I have been practicing for 13 years here in Kansas and then I was a fellow before. So it's been 16 years total. And then if you include residency and stuff, I've never had this request, which is odd.
I've been surprised. I feel like I have seen every situation that could possibly happen with a sperm and an egg, but I have not had this request. When I take care of same-sex male couples, it's very much desired that we make some embryos with some sperm and some with the other.
And we kind of, it's kind of cool. You go back and forth and you can do one from this parent and one from this parent. You go, who goes first? That's super cool.
So I've never had the request of, let's make it ambiguous and in a situation of intended parents, either same-sex or not same-sex. So it hasn't come up for me. I don't know about for you guys, if you've seen it a lot.
I gotta tell you, I've also been practicing for about 16, 17 years. I have not seen this either yet. I'm looking forward to the day where I do get this question, but no, I haven't seen it yet.
I have not seen it either. I have, part of the reason that I knew where this was going legally is because I have gotten the request from same-sex couples who simply asked their doctor not to tell them whose embryo was transferred. And then they've explained to me that they don't want to know who it is.
And in those cases, I had to explain that in the states where I'm licensed anyway, they did need to know. But I've never, to my knowledge, I don't think I've had a sperm mixing case yet. One of the heads of our education department here, Jessica Goldstein, had put forward this with Dr. Marsh.
You know, ASRM guidance on this is slim. It basically notes that transparency and openness are generally better for the mental health of all involved, especially the resulting offspring. You know, issues could differ from those with an anonymous donor maybe than from one with an intended parent.
I mean, that's fair to say, right? Are there any FDA considerations? You know, when we're mixing the sperm together, are there certain guidelines that we must follow and stuff like that? I can tackle that. Yes. So we would have to follow FDA guidelines and be kind of to the strictest degree.
So, you know, there are sometimes ineligible cases. And so from the FDA perspective, a same-sex male couple would fall under ineligible. So I don't know if that would make it, you know, it would be kind of disclosed to the carrier ahead of time.
They would already be aware of that. If there were a difference in discrepancy between the two partners and you didn't know and one of them had an infectious disease, that would have to be disclosed. You'd have to use the highest degree of safety for the whole situation.
So letting them know that you could be exposed, even though it's a very, very minimal risk and kind of talking through that. And the same thing I would say with the donor and the intended parent, the donors are typically, especially if it's a sperm bank, are typically screened pretty well with infectious diseases. They wouldn't really pass as a donor.
But if the intended parent was, then that would be disclosed to the partner and probably would already have been disclosed. But there are those things to work through and you would want to use the highest degree of safety is kind of my concern. Everyone would need to be tested.
I don't know if you have other comments, Joanna. Well, I mean, it seems sort of low risk, right? I mean, I would assume. I don't, I can't say definitively, but.
The risk, I would say, is that so if you have like a same sex male couple and one of them has an infectious disease and the other doesn't, and then that would change the counseling, at least for me, because if you knew the parentage and it was from the one who did not, I would just have to counsel that you still could be exposed, even though I have to say it's more theoretical, like we're going to optimize anyone who had an infection so that their viral load was undetectable and it should be safe. But it would just be a different counseling process. OK, well, let me ask them this.
Are there any considerations with the SART and CDC data entry? Are there areas for it or is it or is it still sort of confused or what's happening there? Yeah, so I am the chair of the SART registry committee, so yes, so we have addressed that on the SART side. So when you are looking at putting in the sperm source, mixed sample is an option. So it's not that you can't enter it that way.
Now, CDC is a different situation right now because we don't really have an active CDC team. The NAS team is inactive right now. They're on furlough.
So there's you can report, but and they still have the contract with Westat, but we aren't there's not a team that's actively changing those types of entries. So from a SART side, you can enter a mixed sperm sample. It's the third option on the dropdown.
Awesome. Thank you. And Joanna, from a legal standpoint of view for couples or patients who intend to mix sperm for, let's say, genetic ambiguity, what should they be thinking about first before they arrive to the clinic? Like how should they prepare themselves, let's say, from a legal standpoint of view so that they know what's ahead for them? So it's an awkward conversation that we often have with couples because the reality legally is that the greatest legal challenge to parentage is coming from each other statistically, not not from outsiders.
So a dissolution scenario would be like the real stress test. If the relationship ends, then the hostile party can try to use the biological ambiguity to challenge legal parentage, even where the parentage framework should protect both parties. And again, the political landscape is changing and not for the better with same-sex couples.
And so strong contemporaneous documentation of intent would be the best prophylactic, as well as agreements with one another. If it turns out to be me, if it turns out to be you, we both intend no matter what that we're both the legal parents and that we'd be entitled to all of the rights and responsibilities that are associated with legal parentage. I will say another risk, something that that they should be aware of, is that anything that's keyed to biology becomes uncertain.
So inheritance, Social Security benefits, immigration benefits keyed to the natural child. I've never been a big fan of the word natural. Tribal membership would be a very big deal, because even though the Indian Child Welfare Act does not come into play when we're talking about parentage actions, again, a growing consideration for many same-sex couples is adoption.
And when adoption comes into play, the Indian Child Welfare Act can apply, even if the consenting party is the one who has Indian heritage. And I use the expression Indian because that's what the law uses. So those are all really important consideration for intended parents who are considering sperm mixing.
I do want to say just kind of on the line of biology that there is, you know, through technology, there is a way to do DNA fingerprinting to be able to either identify on the back end from an embryo or from a child, you know, who the parents are. If we have samples from both and everyone consents and you pay for it. So the technology exists to be able to go on the back end and identify.
But it doesn't seem like that's, you know, in this situation, that's not really the intent. Yeah, I was actually curious, because I've gotten cases after the fact, so they've already, the gestational carrier is already pregnant and they've asked me and they've said, you know, we don't know who the father is. And I've had to explain, you do need to know who the genetic father is in order to file your parentage action.
And in the past, my understanding was that determining who the genetic father was was impossible or not recommended while the child was in utero. But I believe that has evolved somewhat. Are you able to determine that from like non-invasive prenatal testing while in utero? Well, you know, from our standpoint, we do it through the trophectoderm biopsy, typically from the sample for preimplantation genetic testing, which is the like easy, low-hanging fruit for us if they've done PGT.
But you could probably do it off of a chorionic villus sampling or maybe even an amnio. But this, for me at least, is getting out of my field of expertise because that's maternal fetal medicine. So I don't know if there's other considerations with like, you know, contaminants or testing that way.
I do know that you can do it after the child is born, though, for sure. So you could do it as an embryo or as a child. And in the middle ground, I'm not as sure.
Dr. Koo, you may know. Yeah, I'm not sure either. I'm not sure if NIPT or non-invasively, if you could check it yet.
I don't know if the technology is there yet, but perhaps, like you mentioned, the amniocentesis and chorionic villus sampling, that probably they could probably do that. But yeah, I would refer to the MFMs for more. Phone a friend.
Yeah. But fascinating legal aspects that the couple really needs to consider. That's absolutely critical.
So thank you for that. You know, lawyers, our job is to be neurotic and paranoid and reduce risk. That's what we're always concerned with.
And so as science advances just so rapidly, we are just really trying to keep up. And it is it's really hard, especially in a lot of states where the legislatures are just not not as friendly to the science. We're struggling to keep up with you.
Understandable. Yeah. Thank you so much.
Well, we're we're almost out of time. This has flown by, by the way. This has been a fascinating conversation today.
I want to thank my guests. Thank you both so much for being able to come on and share your expertise and wisdom. Thank you.
Yeah. Thanks for having me. It's a treat to participate.
Thank you. Absolutely. Absolutely.
So if you're if you have questions for us, a listener out there, you can email us ASRM at ASRM.org or, you know, you can also hit that subscribe button. It doesn't cost anything. And we'll just pop into your feed every week and you can get absolutely riveting conversations like the one that we had today.
Until next time, I'm Jeffrey Hayes. And I'm Lowell Kuh. And this is ASRM Today.
This concludes this episode of ASRM Today. For show notes, author information and discussions, go to ASRMtoday.org. This material is copyrighted by the American Society for Reproductive Medicine and may not be reproduced or used without express consent from ASRM. ASRM Today series podcasts are supported in part by the ASRM Corporate Member Council.
The information and opinions expressed in this podcast do not necessarily reflect those of ASRM and its affiliates. These are provided as a source of general information and are not a substitute for consultation with a physician.
