Annals of Health Law
THE CURIOUS CASE OF TRENT ARSENAULT
institutions have, historically, been permitted to do so without direct
regulation by the government, 11 such exercises of State power have gone
relatively unaddressed by scholars.
The FDA’s issuance of a cease-manufacture order to a private individual
semen donor presents a unique opportunity for logical extension of the
substantive due process doctrines developed by the courts throughout recent
decades, which typically addressed sexual and reproductive freedom
through a different lens. In many such instances, the challenged law
functioned to encourage procreation: bans on contraception, 12 bans and
regulatory burdens on abortion, 13 and criminalization of homosexuality. 14
Conversely, an FDA prohibition on private, uncompensated semen donation
prevents the affirmative exercise of procreative liberty. 15
Even as Mr. Arsenault is in the focus of administrative proceedings that
challenge the application of these regulations to his particular
circumstances, 16 the FDA’s announced position affects other private
individual sperm donors and women to whom they donate. This article
examines the regulations that the FDA seeks to enforce against private
11. See Griswold v. Connecticut, 381 U.S. 479, 496-97 (1965) (Goldberg, J.,
concurring) (noting that the governmental power to ban contraceptives without compelling
state interest would implicate the state’s ability to circumvent a couple’s desire to reproduce,
the constitutionality of which he characterized as “silly”).
12. E.g., Id.; Eisenstadt v. Baird, 405 U.S. 438 (1972).
13. E.g., Roe v. Wade, 410 U.S. 113, 121 (1973); accord Planned Parenthood of Se.
Pennsylvania v. Casey, 505 U.S. 833, 840 (1992); accord Stenberg v. Carhart, 530 U.S. 914,
917 (2000); accord Gonzalez v. Carhart, 550 U.S. 124, 134 (2007).
14. E.g., Lawrence v. Texas, 539 U.S. 558, 564 (2003); accord Bowers v. Hardwick,
478 U.S. 186, 189 (1986).
15. See generally Carey v. Population Servs. Int’l, 431 U.S. 678, 681 (1977) (“The
decision whether or not to beget or bear a child is at the very heart of . . . [a] cluster of
constitutionally protected choices . . . [and] holds a particularly important place in the history
of the right of privacyFalse”); see also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 54
(1973) (The right to privacy “encompasses and protects the personal intimacies of the home,
the family, . . . motherhood, [and] procreationFalse” (internal citations and quotation marks
omitted)); see generally Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833,
843 (1992) (Concluding that “personal decisions relating to . . . procreation” are among “the
most intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, [that] are central to the liberty protected by the”
Constitution); Planned Parenthood of Se. Pennsylvania v. Casey at 926-27 (Blackmun, J.,
concurring in part, concurring in judgment in part, and dissenting in part) (“Throughout this
century, this Court . . . has held that the fundamental right of privacy protects citizens against
governmental intrusion in such intimate family matters as procreationFalse”).
16. See Center for Biologics Evaluation and Research, Order to Cease Manufacturing of
HCT/Ps— TrentC.Ar senault, U.S.FO OD AND DRUG ADMIN. (Nov. 1, 2010), http://
www.fda.gov/BiologicsBloodVaccines/SafetyAvailability/TissueSafety/ucm232852.htm
(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).
