Forget pandemics. Instead, it is time to worry about falling sperm counts around the world. The end result could mean the end of humanity. But will the rapid decline in male fertility mean an increase in sperm-related legal work in the meantime? Are my priorities backwards?
I recently heard from podcast guest Jonathan Waldman, author of Swim Aimhless: A Man’s Journey Through Infertility and What We Can All Learn From It, about the sharp drop (over 50%!) In sperm counts worldwide. USA Today reiterated the seriousness of the problem and published an article last week that focused on a study that showed sperm counts decreased by more than 59% from 1960 to 2015. Although the author gives the naysayers a nod, it seems pretty clear that this is happening. What does this mean for the legal profession, other than making our future more likely for dystopian children of men?
Regulation. The evidence strongly suggests that chemicals are the culprit. These substances are used to make plastics soft and flexible, which is great. But many are also endocrine disruptors and appear to have the side effect of massacring the building blocks of human reproduction.
Shanna Swan, an epidemiologist and co-author of some pretty compelling studies on decline, explained to USA Today her recommended approach to dealing with the situation. Regulations. In fact, she recommends throwing away the traditional three Rs that are saving the planet: reduce, reuse, recycle. Instead, she advocates new three Rs: remove, replace, regulate. I’m just assuming that “litigate” doesn’t begin with an R.
As lawmakers take the threat to our global sperm supply seriously, we can expect increased regulations on the use of certain chemicals. And increased regulation means practically more and more work for lawyers.
Will phthalates be the new asbestos? As the root cause evidence builds up, the game seems to focus on the manufacturers and commercial users of these reproductive harm chemicals. Perhaps, as with asbestos, a whole new area of litigation is emerging to fight for compensation – IVF isn’t cheap, after all! – Anyone currently undergoing infertility treatment or unable to have children due to low or no sperm count caused by chemical exposure.
ART law on the rise. With New York’s new surrogacy-friendly law and fertility fraud becoming more and more interesting, more and more attorneys are heeding the reputation of the assisted reproductive technology (ART) law. Many ART attorneys already spend a lot of time representing clients in well-known sperm donation agreements. These agreements steer and remind the understanding between the donor and the recipients on a wide variety of issues. Answering questions such as: Can the sperm samples be used on an unlimited number of children? Can they be donated to others for design purposes? And do the parties have to disclose genetic conditions discovered in the future?
Swan stated that at the current rate, half of men in the hardest hit areas (like North America and Europe!) Will run out of sperm by 2045 and the remaining half will suffer from low numbers. It’s a recipe for a DNA diversity catastrophe and many sperm donation agreements in the future.
And don’t forget the embryos. ART attorneys have long been concerned about the more than one million embryos in frozen storage as a result of the increased use of in vitro fertilization. Any cryopreserved embryo poses a legal risk to the fertility clinic, warehouse, gene contributors, and others. However, given the dire outlook for the future of our sperm, embryo donation is likely to increase. And these cryopreserved embryos – like the seeds in the Svalbard Global Seed Vault – could become mankind’s last hope for our civilization.
Ellen Trachman is the executive attorney for Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at [email protected].