Annals of Health Law
THE CURIOUS CASE OF TRENT ARSENAULT
right already firmly established. If the sin of basing a right on
substantive due process is being committed, the sinners are the
justices who have, over several decades, established the principles
that form the basis of the right of a married couple to conceive,
bear, and rear children. 172
The appropriate degree of scrutiny for regulations impairing the exercise
of this right has generally been described as strict scrutiny: the government
must demonstrate that the regulation will advance a compelling interest and
there is no less restrictive alternative. 173
These vital interests were even recognized by CBER in its opposition to
Arsenault’s hearing request, if only obliquely. In discussing the preamble
to the proposed rule, CBER cited the FDA’s explicit deference to the
attending physician, donor, and recipient in the context of determining the
scope of appropriate screening and testing for SIP donations—a decision
that respects the autonomy of the potential parents and their assessment of
risk. 174 Although CBER asserted that the basis for this decision was the
FDA’s belief that “insemination with the semen from a sexually intimate
partner entails minimal risks,” 175 it is perhaps more literally true that the
preamble recognizes simply that the parties to a sexually intimate
partnership are in the best position to know if insemination entails minimal
risks or not. The donor and recipient base this upon their first-hand
knowledge of each other’s medical176 and sexual histories, as well as of
172. John A. Robertson, Procreative Liberty and the Control of Conception, Pregnancy,
and Childbirth, 69 VA. L. REV. 405, 429 (1982) (footnote omitted). But see Gail H. Javitt,
Annotated Bibliography, SYMPOSIUM: “AT THE CROSSROADS—PUBLIC/PRIVATE
PRIORITIES CONCERNING ACCESS TO GENETIC INFORMATION”: ANNOTATED
BIBLIOGRAPHY: Reproductive Genetics 1991-2002: A Selected Annotated Legal
Bibliography of Genetic Testing, Gene Transfer and Reproductive Cloning, 6 J. HEALTH
CARE L. & POL’Y 317, 352 (2003) (discussing Clarke D. Forsythe, Human Cloning and the
Constitution, 32 VAL. U. L. REV. 469 (1998), which argues that
substantive due process decisions relating to family law and reproduction do not
encompass using technology for asexual reproduction, and in particular, for
cloning. These cases recognize limited privacy interests in marital coital
reproduction, in protecting traditional family relationships and protecting
“negative” liberties such as the right to refuse medical treatment. These cases
recognize rights that are “deeply rooted in the common law.” Furthermore, the
reproduction-related cases are premised on coital reproduction, and cannot be
extended to extracorporeal reproduction. . . . The author construes Roe v. Wade
as protecting only a “negative” right to terminate pregnancy free of governmental
intrusion, and not a broader “positive” reproductive liberty.
173. Robertson, supra note 172, at 433.
174. CBER, supra note 132, at 9 (citing Suitability Determination for Donors of Human
Cellular and Tissue-Based Products, 64 Fed. Reg. 52696 (September 30, 1999). See also
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
175. CBER, supra note 132, at 9.
