Annals of Health Law
THE CURIOUS CASE OF TRENT ARSENAULT
attempt to ensure that establishments offering fertility assistance do not cut
costs in a manner that increases disease risk for their customers.
But how are regulations aimed at businesses’ bottom lines relevant to
uncompensated private individuals? And what use are the standards of care
applicable to regulated medical professions if the only parties to a
conception are the donor and recipient? A private semen donor may have
an interest in minimizing his outlay on health screening and testing—but so
does any individual looking for sexual partners. As previously noted,
women are accustomed to assessing the veracity of their partners’
statements about disease risk and defining the scope of sexual activity
accordingly. They may elect to require less screening than a medical
professional would apply to an anonymous human tissue donation, but
those standards prevent doctors from imposing risk on patients; in a
donor/recipient partnership without medical involvement, the risk is
assessed by and taken on by the partners themselves.
The absence of a representative of the medical establishment in private
semen donation activities highlights their similarity to the countless
conception attempts over which the FDA has not asserted regulatory
authority. Private donation, in these circumstances, resembles the millions
upon millions of independent judgments by partners attempting to conceive
a child through simple acts of intercourse; and personal decisions to
conceive via private sperm donation should be afforded the same degree of
freedom from government interference as those judgments. As the Court
has recognized, decisions about accomplishing conception are “among the
most private and sensitive.” 180 The protected, personal, and intimate nature
of this choice is not eliminated if the recipient or her partner makes use of a
cup and syringe to maximize the chance of pregnancy.
VII. GOVERNMENT OR INDIVIDUALS: WHO DEFINES SEXUAL INTIMACY?
The nature of the intimate partnership between individual private semen
donors and recipients itself raises questions. The FDA’s attempt to apply
21 C.F.R. Part 1271 to Arsenault could founder on the government’s failure
to define the exception under which Arsenault seeks shelter. If a private
semen donor and a recipient with whom he agrees to conceive children have
created a sexually intimate partnership, the cease-manufacture order to
Arsenault would be void, as none of the various infractions for which he
was cited would apply to an SIP. 181 This term, undefined in the regulations
or statute, is the fulcrum on which the future of unregulated private semen
donation may rest.
Carey v. Population Servs. Int’l, 431 U.S. 678, 685 (1977).
See supra note 142.