Discussion of the process of sperm freezing will involve discussion of such basic information as the culture medium used; the type of equipment used; the temperature at which the sperm is stored; risks, if any, to the quality of sperm as a result of the freezing; and what sort of emergency backup if any exists in the event of an equipment failure, power outage, etc. This may be very important given that in 2013, one storage facility faced 40 lawsuits when a cryopreservation tank malfunctioned resulting in the damage or destruction of sperm [10].

Cost is another factor that is integral to the informed consent process. For many, insurance will not be available to cover the cost of storage. The consent process should detail whether fees are paid all at once, annually, monthly, etc. as this may be important information to be factored in by those considering banking their sperm. If the sperm bank has options for pre-payment for extended periods of storage, this too should be detailed in the consent process.

Those opting for sperm banking will also need to have information about how long their sperm can be maintained. For example, patients may want to know if any data exists regarding the length of time sperm can be frozen before it is no longer viable and whether the facility in which they are storing sperm has a limit on the amount of time the sperm may be frozen. In some countries outside the USA, for example, legislation may exist limiting the period of time that gametes may be stored [11]. Currently no such law exists in the USA; however, this may be a consideration for both the men preserving his sperm and the cryobank.

Included in the information provided about duration would also be identification of any policies that exist that could result in the inability or unwillingness of the storage facility to maintain the sample. For example, identifying those circumstances under which storage may be discontinued by the facility should be communicated to the man. An explanation of how, when, and if notice will be given prior to transfer or destruction of sperm samples is also necessary.

In developing the informed consent process for cryopreservation of sperm, understanding the patient’s reasons for pursuing fertility preservation can improve the informed consent process. Is the man undergoing cancer treatment that may impact future fertility? Is he going to be engaged in combat and concerned that he may be injured? Is the individual transgender and undergoing gender-affirming surgery but wants to preserve the ability to have a genetic child?² Each of these reasons may require provision of different information to the patient. Understanding a patient’s motivation is necessary to attempt to inform him in a way that respects his goals and values. Respect for the individual’s goals and values is a cornerstone of any informed consent process.

Marital status can sometimes factor into individual seeking sperm banking because some healthcare providers refuse in/fertility treatment for unmarried individuals [12]. Additionally, marital status may be a factor in considering disposition of sperm in the future if the patient either loses capacity or dies. For example, if the married patient dies without having documented his wishes for disposition of any remaining sperm as will be discussed below, his spouse may thus have a claim to his sperm.

On the policy side, many insurance companies and state laws regarding insurance coverage of infertility treatment exclude single individuals from coverage for infertility services [13]. Yet, limiting fertility preservation services, such as sperm banking, to married couples ignores the reasons people choose to undergo fertility preservation. Men undergo sperm banking because they want to keep open the possibility of biological children in the future. As Campo-Engelstein argues, “Denying patients fertility preservation because they are unmarried at the time they seek treatment fails to recognize the future-oriented nature of fertility preservation treatment and that patients’ marital status may change by the time they decide to use their reproductive material” [14]. As one’s goals toward marriage do not necessarily equate with one’s goals for parenting, marital status should not be a barrier to cryopreservation. This is especially true given that “the option to use fertility preservation therapies can have positive psychologic effects on cancer survivors” [15]. And, those undergoing fertility preservation in advance of gender-affirming surgery may, in fact, be preserving sperm with a future goal toward marriage and family building, but not yet be married. “This banked spermatozoa can then possibly be used later to inseminate a female partner if the quality is good, or else be used to perform IVF” [16].

If a man dies or loses capacity, there are a variety of ways to handle his sperm: it can be destroyed, donated for scientific research, donated for use by an infertile individual or couple, or used to create a child that the man’s family or loved ones will raise. The best way to avoid any conflicts regarding disposition of frozen sperm if the sperm provider dies or becomes incapacitated is for the individual freezing sperm to explicitly document his wishes and update them if his circumstances change. In fact, having men annually update their dispositional choices is a helpful way to avoid future conflict. By clearly documenting what he wants and does not want, there is less possibility for disagreement and conflict should he become unable to make his wishes known due to incapacity or death. Most fertility clinics require individuals creating embryos via IVF to complete a document outlining how to handle extra embryos if the couple who created the embryos separate or one individual dies. According to a survey published in 2003, “In 338 of the 340 responding practices, the patient or couple must sign a consent form before their embryos are frozen” [17]. Additionally, the American Association of Tissue Banks also addresses this in its Standards for Tissue Banking updated in 2011: “In the case of a Client Depositor the Informed Consent Record shall also include details about costs of tissue cryopreservation, storage , distribution and disposition options” [18] (emphasis added) indicating that the same practice should be employed for individuals freezing gametes. This practice should in fact be easier for individuals freezing gametes because the gametes only contain one person’s reproductive material whereas embryos contain reproductive material of two people and therefore two people need to agree on all the stipulations of the directive at all times. Additionally, embryos have a different status in the law than gametes, having a heightened “special status,” somewhere between person and property [19].