'I worked in a sperm bank. This is how I played God.'

There’s nothing quite like coming to work to the smell of semen in the morning.

Being greeted down the microscope by a morass of seething sperm in a mindless frenzy to find their egg. Or a sadder scene of feeble soldiers in fruitless limp rotation, doomed by truncated tails incapable of propulsion. Or, even worse, an eerie, empty field, where no sperm resides and only dust motes will grace a woman’s body.

It was 30 years ago, in the sperm bank of a major Melbourne hospital, and I was charged with the god-like responsibility (and social death) of being Scientist In Charge.

It was my job to analyse the semen of men who feared they were infertile and to recruit a stand-in, a sperm donor, if the news was bad. Donors were selected for lack of disease and good sperm, and were matched to couples by looks and blood type, their washed sperm stored in coded straws in massive vats of liquid nitrogen (beside which I was once embarrassingly interviewed for TV, eight months pregnant… ). In couples where this didn’t work, eggs and sperm were taken out of the body and fertilised in the lab, by the then brand new technology of IVF, or in vitro fertilisation. Louise Brown, the world’s first IVF baby, was born in the UK in 1978, and Australia’s first just one year later.

Being immersed in the salty moisture of others’ sex lives was confronting, but it did put me on the frontline of a medical technology that took the making of babies out of the mysterious realm of women’s bodies, and into human hands for the first time in our six million year history. Humans – renowned for their greed, voracity, market-driven decisions, male-control and imperious use of others less fortunate – now, theoretically, ruled the realm of procreation. I was witness to the shocked predictions of what may come when markets, men and blind drive to procreate, combined. This month’s unseemly battle between the luscious Sofia Vergara and her spurned ex, Nick Loeb –  trying to grasp their frozen IVF embryos and force her to be genetic mother to his children – is a perfect example of where it was all heading.

Sofia Vergara and ex partner, Nick Loeb.

The problem immediately spotted as Louise edged her way into the Brave New World was that once you put egg and sperm into human hands, you could do just about anything with it, within the limits of technology.

A fertilised egg, a fleck of conception or an IVF embryo, can find a home in almost any consenting woman’s womb, and noone knows who to call 'mother'. Kids can have a number of potential legal parents (egg, sperm, surrogate, social parents); who’s responsible for them when the chips are down?  Children can be born with no genetic or familial relationship to the woman who carried them. Women have given birth to their grandchildren, sisters, aunts and nephews. Strangers from a particular socio-economic group (read poor) in carry and deliver babies not genetically their own, in commercial acts of surrogacy - a new kind of prostitution borne of financial desperation. Donated eggs and sperm end up as embryos then babies, who never ‘see’ their genetic lineage.

Many of the world’s 5 million IVF babies have been born into these scenarios, creating legal and moral minefields.

There in our little lab in the early ‘80s, with donors clutching their yellow-capped jars and trudging stoically to the masturbatorium upstairs (actually, the shower in the hospital’s men’s toilet, deftly disguised by a strip of leopard spot lurex stretched across the shower-head and a ragged collection of soft porn), we lived through the heroic attempts of the Victorian government to lead the world in gently nudging this explosive new technology into humane and respectful behaviour. In our small state, we banned surrogacy. We ruled out sale of eggs and sperm but enabled donation, including to research. We established laws requiring that donors’ identifying information be kept, so children born of reproductive technologies could know from whence they came.


Meanwhile, scientists worked out how to freeze IVF embryos in the above-mentioned vats of liquid nitrogen, allowing couples desperate for children to stockpile them, to shore up their chances of a baby. Once the couple had one (or gave up, or split up, like Vergara and Loeb), they started to leave their embryos in storage, not wanting to use them, but unwilling to relinquish them. There are about 600,000 frozen embryos in the US alone, and at least 120,000 here.

Author, Gael Jennings.

Who owns a speck of conception created by two people who now hate each other? Or for that matter, who love each other but one of them is dead? What do you do with the once-treasured speck? Loeb says theirs have a right to life - do they? They’re certainly not like a frozen ear or even kidney. We all know these specks are invested with the potential for life, and carry the DNA of two people whose genetic lineage it could carry forth.

Well, Vergara is right to display her insouciance on the matter. Not only does she have a contract which spells out that both parties have to agree before the embryos can be used, the world’s laws pretty much say the same thing. After decades of global squabbles between the religious and the secular, feminists and entrepreneurs, human rights scholars and parent rights activists, it is generally held that IVF embryos do not have rights. Almost exclusively, the courts have decided that the human rights of the man and woman whose sperm and egg made the embryo, come first. It’s up to them to decide what they do with their speck of conception.


And no matter how much one of the donors wants to use the embryo, he or she can’t if the other says ‘no’. Leading human rights tribunals, including the European Court of Human Rights (2007) and the law courts of almost all relevant jurisdictions have used the same human and individual rights logic to rule that noone can force someone to become an IVF parent against his or her will.

Except in Italy, where religion won. A 2004 law, later slightly amended, gave the IVF embryo a right to life, trumping the human rights of the woman, and forcing Italian woman to have all their frozen IVF embryos eventually implanted, even if they were grossly abnormal. Such is the Pandora’s Box of IVF.

Sofia Vergara with fiance, Joe Manganiello. Image via @sofiavergara.

Loeb is also running a pro-life argument, and combining it with ‘men’s rights’ to plead his case. Not only is he out of step with a vast swag of prior practice and decision-making, he’s been roundly condemned by feminists, reproductive justice activists and even the American Association of Obstetricians and Gynecologists, for using “reproductive coercion”. Another gift from the Pandora's Box of setting our eggs and sperm free to fulfill the whims of doctrine and perpetuation of male dominance..

So, if Vergara wins and the embryos are not used, what happens to them? In the UK or Australia, the problem would be solved for her. Both countries have rules stipulating that IVF embryos be discarded within five years (we have an option for a further five). In the UK, 1.7 million of them have been thrown away, 20,000 in Victoria and last year in WA, the numbers of embryos being discarded was as great as those actually used.


But, being made in America, Vergara’s embryos, like most in the United States, will probably continue to sit in liquid nitrogen until she or her estate can no longer afford to pay $50 a month storage. The US doesn’t have a laws that impose a time limit on unused embryos; it's a matter for each lab (which are mostly private, and there’s good money in storage).

Vergara is best known for her role on sitcom, Modern Family. Image via @sofiavergara.

And IVF embryos are stockpiling because the vast majority of patients don’t really want to lose them. Studies in 2000 and 2005 foundmore than 70 per cent of patients with frozen embryos in both the US and Australia had not made a decision about what to do with them five years after the birth of their first child conceived by IVF, nor made a plan to do so. Nine patients in 10 thought the embryos had ‘moral significance’. Of course they did.

Walking along the corridor to our sperm bank all those years ago, past the wan women waiting to be inseminated by a stranger’s sperm, I understood how profound the compulsion for children could be, and how it could lead you to places you’d never otherwise dream of.

No wonder we have nearly a million last chances, specks of self, sitting in storage, awaiting some magical resolution to the mundane predicament of technology outstripping wisdom.

Try more from Gael here:

The challenge of forming a friendship with your adult daughter.

“In that moment, I transformed from mother and ex-wife, to woman again.”

“The upside of divorce is getting rid of your spouse.”