HIV Parenting Through Assisted Reproductive Technology

The lifespans of persons living with human immunodeficiency virus (HIV) are growing with improvements in medicine. Many in this population are of reproductive age and looking for ways to safely have genetically-linked children. HIV can be transmitted through semen, making unprotected sexual intercourse a highly risky option that puts the woman and fetus at risk. Thus, the options for an HIV-positive male to have a child are to adopt, use donor insemination, have unprotected sexual intercourse with or without pre-exposure prophylaxis (PrEP), or to utilize sperm washing.

Approximately 15% of men on antiretroviral medications will still have some virus present in their semen. The viral particles are present in the liquid and cellular portions of the semen, but not in sperm. Sperm washing separates sperm from semen, removing the viral particles that may be present. A 2014 meta-analysis of clinical studies since 1998 reveals no reported cases of HIV transmission using sperm washing. However, the CDC has not reversed its recommendation against insemination with sperm from an HIV-infected man.

Depending on the in vitro fertilization (IVF) program an HIV-affected couple is using, the sperm will be tested for the presence of virus either before the sperm are washed, afterwards, or both. This additional viral testing is a must, when an HIV-positive man is working with a gestational carrier or surrogate. Some programs even require this viral load quantification even when the intended mother is a sexual partner - although many programs are comfortable using a washed semen sample without the pre-wash or post-wash testing.

For HIV-positive male couples, sperm washing means they may have a child through surrogacy. Obviously, there are more important legal disclosures and full medical consultations that need to occur when using an HIV-positive male's sperm for surrogacy. The surrogate must fully understand the risks and give fully informed consent. However, there are many medical steps that may be required to assure additional security for the surrogate, such as requiring the HIV-donor to have fully suppressed viral loads for at least 6 months, use of procedures such as ICSI (intracytoplasmic sperm injection) and giving surrogates pre-exposure prophylaxis.

From a legal perspective, you need to consider the various HIV-specific laws in the United States, including a 1998 Supreme Court case, (Bragdon v. Abbott, No 97-156):

In a 5 to 4 decision, the justices ruled:

  1. Healthcare professionals do not have a special standard to determine risk, they cannot rely on their own individual judgment; objective medical evidence must be used
  2. Asymptomatic HIV disease constitutes a physical impairment
  3. Reproduction is considered a major life activity

The decision was written broadly, to include all HIV-infected persons.

The criminal statutes regarding spread of HIV vary from state to state. Many state criminal laws were passed at a time when there was a great deal of fear around HIV and before there was an understanding that antiretroviral therapy would reduce transmission risk. In addition, many of the statutes do not account for preventative measures such as condoms, ART or pre-exposure prophylaxis. I highly recommend assessing the laws of the state both in which the fertility treatment will take place and also where the surrogate lives, to assure there are not any criminal ramifications for use of an HIV-positive male's sperm in a non-HIV-positive woman.

Many of these statutes were drafted/crafted/passed before a time when sperm washing was considered a viable option. Therefore, there are many states which even criminalize behaviors that pose low or negligible risk for HIV transmission - which means that use of sperm that has been washed may fall within the scope of these statutes. Most statutes allow disclosure as a defense, but will need to be assessed, to assure there is no risk. In addition, you will need to assure that you are in compliance with counseling and consent laws in any given state where the surrogacy is taking place.

With accurate legal analysis and excellent medical treatment, HIV-positive parenting is a reality today and many healthy non-infected children have been born and will continue to be born.

Kimberly M. Surratt is an attorney practicing at Surratt Law in Nevada