Annals of Health Law
THE CURIOUS CASE OF TRENT ARSENAULT
obtaining fertility care. 37 The private nature of the relationship between
donor and recipient provides a unique option to women seeking to conceive
and does not function as a perfect substitute for sperm bank donations.
II. THE REGULATED STATUS QUO OF SPERM BANK DONATION
Private sperm donation, with its close correspondence to familiar models
of mate selection, contrasts dramatically with the sperm bank industry.
Sperm banks are subject to federal (and, often, state) 38 regulations that
attempt to ensure safety of users of these businesses. However, the
complexity of the federal regulatory scheme alone creates compliance
burdens that are significant for a profit-oriented medical enterprise and
practically impossible for an individual.
37. Mary Crossley, Dimensions of Equality in Regulating Assisted Reproductive
Technologies, 9 J. GENDER RACE & JUST. 273 (2005) (discussing discriminatory provision of
access to ART); see also Interview by David Masci with Ira “Chip” Lupu, F. Elwood and
Eleanor Davis Professor of Law, The George Washington University Law School, & Robert
W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion,
The George Washington University Law School (June 3, 2010), http://
www.pewforum.org/Church-State-Law/Tensions-Between-Rights-of-Conscience-and-Civil-Rights.aspx; N. Coast Women’s Care Med. Group v. Superior Court, 44 Cal. 4th 1145
(2008) (Although the Supreme Court of California held that physicians’ free exercise rights
did not allow them to decline to serve a lesbian couple seeking fertility treatment, it is
unclear whether such a result would also be reached in other jurisdictions, given the role of
State law antidiscrimination protections in that case and recent developments in federal First
38. See, e.g, CRYOGAM COLORADO, http://www.cryogam.com/CG-Licensure.html (last
visited Sept. 28, 2012); N.Y. PUB. HEALTH LAW §§ 573, 575 (Mckinney 1993); CAL.
HEALTH & SAFETY CODE § 1639.1 (West 1991); MD. CODE ANN., HEALTH OCC. § 17.301
(West 2012). New York, California, and Maryland require licensure of sperm banks.
39. See Eligibility Determination for Donors of Human Cells, Tissues, and Cellular and
Tissue-Based Products, 69 Fed. Reg. 29, 786-7, 29 (May 25, 2004) (codified at 21 C.F.R. §§
210-1, 820, 1271 (2012)):
We are issuing these new regulations under the authority of section 361 of the
Public Health Services (PHS) Act, 42 U.S. C. 264 (2012). Under that section, by
delegation from the Surgeon General and the Secretary of Health and Human
Services, the FDA may make and enforce regulations necessary to prevent the
introduction, transmission, or spread of communicable diseases between the
States or from foreign countries into the States. Intrastate transactions affecting
communicable disease transmission may also be regulated under section 361 of
the PHS Act.
See also Public Health Service Act, Pub. L. No. 78-410, 58 Stat. 682, 703, § 361 (1944)
(codified as amended at 42 U.S. C. § 264 (2012)).