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                               
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          FISCAL:                                                     
          4
                                                                      
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          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---



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          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  




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          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  




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          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  




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          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.   




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          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  




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               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  




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            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,   available  to 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 shall  also  perform 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




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                 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.



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