BILL ANALYSIS SENATE HEALTH COMMITTEE ANALYSIS Senator Sheila J. Kuehl, Chair BILL NO: SB 443 S AUTHOR: Migden B AMENDED: As Amended March 26, 2007 HEARING DATE: March 28, 2007 4 FISCAL: 4 3 CONSULTANT: Patterson SUBJECT Tissue donors: sperm donors SUMMARY This bill authorizes the use of sperm from a donor who has tested reactive for human immunodeficiency virus (HIV) or human T lymphotropic virus-1 (HTLV-1), for the purposes of insemination or advanced reproductive technology (ART). CHANGES TO EXISTING LAW Existing law: Existing law requires all sperm donors to be screened and found non-reactive for HIV, Hepatitis B virus (HBV), Hepatitis C virus (HCV), HTLV-1, and syphilis. The law contains exceptions that allow donors who are found reactive for HBV, HCV or syphilis to donate sperm for insemination or ART. For example, a recipient of donated sperm may consent to receive sperm from a donor found reactive for HBV, HCV or syphilis if the donor is the spouse or partner of, or the designated donor for, that recipient. In this instance, the physician assisting the insemination or ART must advise both the donor and the recipient of the potential medical risks associated with the use of the sperm, and both the donor and the recipient Continued--- STAFF ANALYSIS OF SENATE BILL 443 (Migden) Page 2 must sign a document affirming that they understand the risks and consent to the procedure. Another exemption allows sperm, whose donor has tested reactive for syphilis, to be used after the donor is treated for syphilis. A third exemption allows sperm whose donor has tested reactive for HBV to be used after the recipient has been vaccinated against HBV. The law also allows recipients of sperm, upon signed informed consent, to waive second or repeat testing of a sperm donor known to the recipient. Existing law makes it a felony to donate semen to any medical center or semen bank when the donor is aware that he has tested reactive for HIV or has been diagnosed with Acquired Immune Deficiency Syndrome (AIDS). This bill: SB 443 allows a recipient of sperm to consent to insemination or use of sperm in ART if the sperm donor is found reactive for HIV or HTLV-1, if the donor is the spouse or partner of, or designated donor for, that recipient. The bill requires that sperm from a donor who tests reactive for HIV or HTLV-1, and who is donating to a recipient who tests negative for HIV or HTLV-1, be processed to minimize infectiousness before it is used for insemination or ART. The recipient and the donor must mutually consent to the use of the sperm, and the sperm processing must be performed by a facility recognized by the American Society of Reproductive Medicine (ASRM). The bill requires the physician providing insemination or ART using processed sperm to provide prophylactic treatments to the recipient, as appropriate, to reduce the risk of infection during, and subsequent to, insemination. The bill also requires the physician to test the recipient of the processed sperm for HIV or HTLV-1 after performing insemination or ART. The bill allows unprocessed sperm from a donor who has tested reactive for HIV or HTLV-1 to be used for insemination or ART if the recipient has been documented with HIV or HTLV-1 infection and where informed and mutual STAFF ANALYSIS OF SENATE BILL 443 (Migden) Page 3 consent has occurred. Additionally, the bill indemnifies donors from provisions in existing law that criminalize the donation of semen by individuals who are aware that they have tested reactive to HIV or have been diagnosed with AIDS. FISCAL IMPACT Unknown. BACKGROUND AND DISCUSSION Purpose of the bill According to the author, current law discriminates against HIV and HTLV-1 infected patients and prevents them from accessing available technology designed to prevent HIV transmission during reproduction. This legislation would allow for assisted reproduction for HIV and HTLV-1 patients. HTLV-1 HTLV-1 is a retrovirus that can be transmitted by sexual contact, from mother to child (primarily through breast feeding), through blood transfusion and by sharing contaminated needles. HTLV-1 is associated with adult T-cell leukemia/lymphoma. HTLV-1 has low endemic rates in the United States, and is generally spread through sexual contact and transmission from mother to child. Overall, the prevalence of HTLV-1 is significantly lower than that of HIV. There is no cure for HTLV-1 and infection is lifelong. Sperm washing The processing of sperm from a donor testing reactive for HIV or HTLV-1 is commonly referred to as sperm washing. Numerous studies have confirmed that HIV is primarily found in semen's white blood cells and plasma, not generally within the sperm itself. The sperm washing process involves centrifuging the semen in order to separate it from the sperm. This process can involve a "swim-up" technique that removes inactive sperm. The remaining active sperm can STAFF ANALYSIS OF SENATE BILL 443 (Migden) Page 4 then be used for insemination or ART. Numerous national and international research studies have reported that the sperm-washing process markedly reduces HIV levels in the sperm. A 2004 study published by the ASRM found that after sperm washing procedures, more than 99 percent of HIV is removed from the sperm. Additionally, sperm washing technology and procedures continue to improve. For example, in 2004, Harvard Medical School, with support from the National Institutes of Health, developed sperm washing techniques that resulted in a higher yield of sperm and a lower rate of contamination of the sperm. In 2005, Japanese researchers reported the development of an improved swim-up technique which resulted in HIV-free sperm samples, and concluded that the method involves no risk of HIV transmission to female partners. The only way to ensure that sperm that has undergone sperm washing is entirely free of HIV or HTLV-1, is to test the sperm post-washing. The testing process requires a portion of the washed sperm to be quarantined, or essentially frozen, while the remaining portion is tested for the viruses. According to officials at Bay Area Perinatal AIDS Center at the University of California, San Francisco, out of 3,800 cases reported outside of California in which couples with an HIV-positive man have used sperm washing in their fertility treatments, no cases of HIV transmission have occurred. American Society of Reproductive Medicine Guidelines In 2006, the ASRM issued guidelines for reducing the risk of viral transmission during fertility treatments that describe the sperm washing process and include recommendations for facilities conducting sperm washing procedures. For example, the guidelines recommend that STAFF ANALYSIS OF SENATE BILL 443 (Migden) Page 5 sperm samples from viral carriers be processed and stored in a separate laboratory or designated space within a main laboratory in order to minimize the risk of cross-contamination. The guidelines also address testing and treatment of couples at risk of viral transmission during fertility treatment, including recommendations that that couples be advised of the possibility of transmission of HIV and HTLV-1 in fertility treatments, that if the male partner is infected with HIV he should be treated with antiretroviral drugs prior to fertility treatment, and that an uninfected female partner should be tested and monitored for HIV during treatment and pregnancy. If HIV infection is detected, she should be advised about how the use of antiretroviral drugs during pregnancy and labor, use of cesarean section, and avoidance of breastfeeding can reduce the risk of transmission to the offspring. Prior legislation AB 441 (Richter), Chapter 511, Statutes of 1997, authorizes a recipient of sperm to consent to therapeutic insemination of sperm even if the donor of the sperm is found reactive for HBV, HCV or syphilis if the donor is the recipient's spouse, partner or designated donor, and authorizes the use of tissues from donors who test reactive for HBV, HCV or syphilis for therapeutic insemination under certain circumstances. Arguments in support Supporters such as the ASRM, American College of Obstetricians and Gynecologists and the San Francisco AIDS Foundation state that, due to the advancement of medical treatment and evolution of public health policies, HIV positive individuals who are given standard treatment can be expected to live normal lives for decades. With the changing impact of HIV, many infected patients now desire to have their own families. Supporters argue that HIV-positive patients ought not to be denied fertility services, and that such denials are discriminatory. They also argue that, without the bill, HIV patients will be tempted to put themselves at a greater risk of transmission by trying to conceive a child without medical help and the safeguards that processes like sperm washing can provide. STAFF ANALYSIS OF SENATE BILL 443 (Migden) Page 6 Numerous studies have documented that ART can prevent the spread of infection from the semen of an HIV-infected male to his female partner, and access to these technologies allow for the safe reproduction of individuals with HIV and the potential protection of their partners and future offspring. Arguments in opposition None received. COMMENTS AND QUESTIONS 1. Need stronger oversight. This bill requires sperm washing to be performed by a facility that is recognized by the ASRM, a national non-profit organization made up of various types of medical professionals that provides information, education, advocacy and guidelines in the field of reproductive medicine. It is unclear how the ASRM recognizes facilities that perform sperm processing, and such facilities do not appear to have federal or state oversight specific to the sperm washing process. These facilities should be required to follow established procedures for the handling and processing of sperm from carriers of HIV and HTLV-1. 2. Option for testing processed sperm. Although research suggests that sperm washing significantly reduces the risk of transmission of HIV or HTLV-1, recipients of sperm should be informed that testing the sperm after washing is the only way to ensure it is free of HIV or HTLV-1, and given the option to test the sperm prior to insemination or ART. The recipient should also be made aware of the impact on fertility that the testing may have on the sperm. 3. Treatment of male partner and monitoring of female partner. ASRM guidelines recommend that a sperm donor who has been tested reactive for HIV or HTLV-1 be treated with antiretroviral drugs prior to fertility treatment, and that the sperm recipient be monitored for HIV during treatment and pregnancy. Both of these recommendations appear to be valid measures to prevent transmission and to protect the health of the sperm STAFF ANALYSIS OF SENATE BILL 443 (Migden) Page 7 recipient, and should be required in statute. 4. Information to reduce risk of transmission to infant. In an event that transmission does occur, the sperm recipient should be informed of available treatments during and after pregnancy, and ways to minimize the risk of transmission to the infant. Suggested amendments: The mock-up below incorporates suggested amendments for the three comments listed above, and also contains suggested technical and clarifying amendments. Subdivision (c), paragraph (3), subparagraph (B) is amended as follows: (B) (1) Sperm whose donor has tested reactive for HIV or HTLV-1 may be used for the purposes of insemination or advanced reproductive technology for a recipient testing negative for HIV or HTLV-1 only after the donor's sperm has been effectively processed to minimize the infectiousness of the sperm for that specific donation, where informed and mutual consent has occurred,.and where the sperm processing has been performed by a facility recognized by the American Society of Reproductive Medicine.(2) The department shall adopt regulations relating to facilities which perform sperm processing, pursuant to subparagraph (B), that prescribe standards for the handling and storage of sperm samples of carriers of HIV, HTLV-1, or any other virus as deemed by the department. Until the department adopts these regulations, facilities which perform sperm processing shall follow facility and sperm processing guidelines developed by the American Society of Reproductive Medicine. (3)Prior to insemination or other advanced reproductive technology services, the physician shall inform the recipient of sperm from a donor who has tested reactive for HIV or HTLV-1 that sperm processing may not eliminate all risks of HIV or HTLV-1 transmission, and that the sperm may be tested to determine whether or not it is free of HIV or HTLV-1. The physician shall also inform the recipient of potential adverse effects the STAFF ANALYSIS OF SENATE BILL 443 (Migden) Page 8 testing may have on the processed sperm. (4) The physician providing insemination or advanced reproductive technology services shall provide, as appropriate, prophylactic treatments , including antiretroviral treatments,availableto the recipient to reduce the risk of acquiring infection during, and subsequent to, insemination or advanced reproductive technology . The physician shall also treat, as appropriate, the donor of sperm that tests reactive for HIV or HTLV-1 with antiretroviral treatments prior to insemination or advanced reproductive technology services. (5) The physician shallalsoperform appropriate followup testing of the recipient for HIV or HTLV-1 following the insemination or other advanced reproductive technology, and recommend ongoing monitoring by a physician during treatment and pregnancy. The physician shall also recommend in the sperm recipient's medical record that the recipient be monitored during treatment and pregnancy. (6) In the event that the recipient tests reactive for HIV or HTLV-1 following insemination or other advanced reproductive technology, the physician shall inform the recipient of appropriate treatments during and after pregnancy, and of treatments or procedures that may reduce the risk of transmission to the offspring. (7) Sperm whose donor has tested reactive for HIV or HTLV-1 may be used for the purposes of insemination or advanced reproductive technology if the recipient already has been previously documented with HIV or HTLV-1 infection, and where informed and mutual consent has occurred. POSITIONS Support: AIDS Legal Referral Panel Alta Bates Summit Medical Center American Civil Liberties Union American College of Obstetricians and Gynecologists, District IX/CA American Society for Reproductive Medicine California Fertility Partners, Los Angeles City and County of San Francisco, Department of Public Health STAFF ANALYSIS OF SENATE BILL 443 (Migden) Page 9 City and County of San Francisco, Department of Public Health, Forensic AIDS Project Kaiser Permanente San Francisco AIDS Foundation Women Organized to Respond to Life-Threatening Diseases University of California San Diego, Mother Child Adolescent HIV Program University of California, San Francisco, AIDS Research Institute University of California, San Francisco, Departments of Laboratory Medicine and Epidemiology/Biostatistics University of California, San Francisco, Division of Hematology/Oncology University of California, San Francisco, Obstetrics, Gynecology and Reproductive Services University of California, San Francisco, Positive Health Program 18 individuals Oppose: None received. -- END --