Annals of Health Law
THE CURIOUS CASE OF TRENT ARSENAULT
Moreover, CBER’s interpretation of the regulations requires it (as was
the case with Arsenault) to send investigators into the sites of manufacture
of private semen donation, even when that means inspecting an individual’s
bedroom. 197 The outrageous nature of such actions was cited by the
Supreme Court for rhetorical effect in Griswold v. Connecticut, in which
the majority noted that “the very idea” of “allow[ing] the police to search
the sacred precincts of marital bedrooms for telltale signs of the use of
contraceptives . . . is repulsive to the notions of privacy.” 198 Just as the
Supreme Court feared, FDA agents went marching into Mr. Arsenault’s
bedroom—but this time on the hunt for telltale signs of unauthorized
attempts to conceive.
CBER claimed that its intervention is justified because of safety
concerns. However, ironically, by expanding its scope of regulatory
authority, CBER may decrease both reproductive autonomy and safety. As
noted above, CBER has created a loophole in regulatory enforcement for
donors who have unprotected sexual intercourse with recipients—even if
their intentions are identical to Arsenault’s. In the final analysis, CBER’s
overbroad interpretation cannot stand “in light of the familiar principle, so
often applied by the Court, that a ‘governmental purpose to control or
prevent activities constitutionally subject to state regulation may not be
achieved by means which sweep unnecessarily broadly and thereby invade
the area of protected freedoms.’”199
L.J. 597, 623-24 (March 2002).
Under all statutes that define the paternity ramifications of artificial insemination
by donor, the husband of an artificially inseminated woman is the father of the
resulting child if he consented to the insemination. . . . The typical method of
demonstrating consent is through a signed writing, but consent can also be
established orally. Where a husband gives no written or oral consent, even in
states with no governing statute, he may nonetheless be liable for support under
contract theories or equitable principles.
Storrow is careful to note that the law sometimes applies different presumptions to
anonymous versus known sperm donors, however, and that a presumption of legal parental
status for husbands can function to discriminate against single women and lesbian couples.
See id. at 628 (citing Catherine DeLair, Ethical, Moral, Economic and Legal Barriers to
Assisted Reproductive Technologies Employed by Gay Men and Lesbian Women, 4 DEPAUL
J. HEALTH CARE L. 147, 150-51 (2000)).
197. See DEP’T. OF HEALTH AND HUMAN SERVS., FOOD AND DRUG ADMIN.,
INSPECTIONAL OBSERVATIONS OF TRENT ARSENAULT, (2010), available at http://
198. Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
199. Griswold, 381 U.S. at 485-86 (citing NAACP v. Alabama, 377 U.S. 288, 307