Annals of Health Law
THE CURIOUS CASE OF TRENT ARSENAULT
lesbians) on a purely private, uncompensated basis. Typically, the federal
government permits women to vet potential fathers without interference,
but in this case the FDA announced that a man who provides cups of his
fresh semen to women, with the understanding that the artificial
insemination will be performed at home, not by a medical professional,
must comply with the plethora of regulations applicable to sperm banks and
small medical offices that practice reproductive medicine. 5
The regulation of assisted reproductive technologies (ART) has long
been the focus of legal academic study, 6 and the potential for government
regulation of gamete donation and donor eligibility to have discriminatory
effects, 7 or even to trend toward eugenics, 8 illustrates the necessity of
weighing the alleged safety benefits of each such regulation against the
burdens imposed on individual rights. In previous instances, these articles
have analyzed ART regulation as applied to the fertility clinics, medical
practices, and semen banks through which infertile patients typically access
reproductive assistance. 9 The regulation of these commercial enterprises, of
course, has indirect effects on individuals’ ability to conceive. 10 But
because persons conceiving without the assistance of medical personnel or
5. See Center for Biologics Evaluation and Research, Order to Cease Manufacturing of
HCT/Ps—Trent C. Arsenault, U.S. FOOD AND DRUG ADMIN. (Nov. 1, 2010),
m (last visited July 26, 2012) [hereinafter “Order”] (Ordering Mr. Arsenault to cease
dispensation of his sperm to committed couples on an uncompensated basis or risk criminal
and financial penalty).
6. E.g., Weldon E. Havins & James J. Dalessio, The Ever-Widening Gap Between the
Science of Artificial Reproductive Technology and the Laws Which Govern That Technology,
48 DEPAUL L. REV. 825 (1999); Helen M. Alvare, The Case for Regulating Collaborative
Reproduction: A Children’s Rights Perspective, 40 HARV. J. ON LEGIS. 1 (2003); Lyria
Bennett Moses, Understanding Legal Responses to Technological Change: The Example of
In Vitro Fertilization, 6 MINN. J.L. SCI. & TECH. 505 (2005).
7. See Luke A. Boso, The Unjust Exclusion of Gay Sperm Donors: Litigation Strategies
to End Discrimination in the Gene Pool, 110 W. VA. L. REV. 843, 844 (2008) (discussing the
FDA’s explicitly discriminatory donor screening guidance document, which, inter alia,
excludes semen donors who have engaged in sex with other men at any time within the
preceding five years).
8. See Kerry Macintosh, Brave New Eugenics: Regulating Assisted Reproductive
Technologies in the Name of Better Babies, 2010 U. ILL. J.L. TECH. & POL’Y 257 (2010).
Macintosh notes that not only is infertility itself a disability but that higher rates of health
problems among children conceived via ART may be a function of the parents’ health status;
see id. at 296-98. Insofar as increased regulation of ART usage is intended to decrease the
number of such births, it functions as a eugenicist bar on reproduction by unhealthy or
genetically distinct populations. Cf. Mary Crossley, Dimensions of Equality in Regulating
Assisted Reproductive Technologies, 9 J. GENDER RACE & JUST. 273, 285 (2005) (discussing
trait selection by users of ART and donated gametes).
9. See, e.g., supra note 6.
10. The regulation limits a prospective mother’s choice of donors and increases her