Sperm donor must testify about medical history.

Balancing privacy rights against public policy, a California appeals court has held that an anonymous sperm donor has only a limited right to privacy and can be forced to testify in a couple's lawsuit that charges a sperm bank and its doctors failed to disclose that the donor had a family history of kidney disease.

The decision in Johnson v. Superior Court of Los Angeles stopped short of allowing public disclosure of the sperm donor's identity in Diane and Ronald Johnson's case. But the ruling gives hope to infertile couples in California who seek legal redress after receiving sperm with potentially harmful traits from a sperm bank that fails to tell the whole story about donors' medical histories. (No. B137002, 2000 WL 638843 (Cal. Ct. App. May 18, 2000).)

The Johnsons' daughter, Brittany, was conceived in 1989 through artificial insemination from sperm deposited at California Cryobank. Now, at age 11, she has an incurable, genetically transmitted disease known as autosomal dominant polycystic kidney disease. The donor, known as Donor No. 276 and John Doe, checked boxes on Cryobank's donor questionnaire indicating a family history of kidney disease, and Cryobank accepted his deposits of some 320 vials of sperm from 1986 to 1991. Cryobank paid the donor $35 for each vial for a total payment of more than $11,000.

The Johnsons sued Cryobank and two of its doctors, including a genetic counselor, for professional negligence, fraud, and breach of contract. The suit alleged the defendants falsely represented to the Johnsons that the sperm they bought was tested and screened for infectious and genetically transferable diseases. The suit also charged that Cryobank failed to properly test and screen Donor No. 276 and conduct further investigations or testing once it learned he had a family history of kidney disease.

In the discovery phase of the litigation, the Johnsons' attorney, Walter Koontz Jr. of Newport Beach, California, sought the donor's identity and medical records but was rebuffed by the trial court's finding that the donor had a privacy interest in remaining anonymous--an interest that was bolstered by a confidentiality agreement that promised his identity would not be disclosed. The court also found that the Johnsons failed to show a compelling state interest that outweighed the donor's right to remain anonymous. (Johnson v. California Cryobank, No. SC043434 (Cal., Los Angeles County Super. Ct. July 25, 1996).)

Disagreeing with the lower court, California Court of Appeal Judge Linda Lefkowitz ordered the defendants to turn over medical records relevant to the Johnsons' suit and to present the donor for depositions, while protecting his identity "to the fullest extent possible." Lefkowitz based her decision on three grounds.

First, Lefkowitz rejected Cryobank's argument that a physician-patient privilege between the doctors and the donor would bar disclosures. She held that no privilege existed because the donor visited Cryobank "for the sole purpose of selling his sperm," not for diagnosis or treatment of a physical, mental, or emotional condition.

Second, Lefkowitz held that Cryobank promised too much by issuing a standard confidentiality agreement that guaranteed the donor's identity would never be released under any circumstances. California law states that all records pertaining to insemination are subject to inspection by court order on a showing of good cause.

Third, Lefkowitz found that the donor had a limited privacy interest in his identity as a sperm donor, but--due to the commercial nature of the transactions, which were "likely to affect the lives of many people" his reasonable expectation of privacy was substantially diminished.

"It was a beautifully written decision," Koontz said. "There were three major issues discussed that would be of great concern to trial lawyers on how to yank important medical records out of private sources. The decision essentially gives the same deference and responsibility to the needs of the parents and the child to discover medical records as it does to adoptive parents and an adopted child."

Koontz said that, while he recognizes a general right of privacy for individuals, Cryobank missed the mark in arguing privacy in this case.

"The donor's attorney tried to argue that it was a badge of procreative freedom [to keep the donor's identity secret] and that there shouldn't be any diminution of privacy," Koontz said. "The reason why the right to privacy is not unfairly impinged in this case is that there are a number of compelling state interests allowing that right to be overridden."

Koontz said the sperm donor's deposition and medical records are crucial to the Johnsons' professional negligence case but, more important, to their daughter's medical care. Two of Brittany's doctors submitted declarations imploring the disclosures so they can better diagnose her condition and plan her course of treatment. Dialysis, kidney transplants, and other procedures may be necessary for Brittany as the disease progresses.