Annals of Health Law
THE CURIOUS CASE OF TRENT ARSENAULT
these principles unconstitutionally infringe on the rights of Arsenault, the
recipients, and potentially other citizens.
By construing its regulations to cover interactions between private
individuals, where no medical personnel are involved and no medical
procedure is performed, CBER has dramatically widened the scope of its
supposed mandate to protect. It asserted that it had the right to stop
Arsenault from providing semen to consenting adult recipients because
doing so “protects [families] from communicable diseases.” 193 However,
the preamble to the final rule cited by CBER speaks specifically to reducing
the risk posed by artificial insemination in “small medical practice[s].” 194 If
CBER’s purview is not limited to the regulation of medical practices or
professionals, and instead includes the ability to regulate reproductive
decisions made by two private individuals in a non-commercial context, the
consequences for individual autonomy and privacy are dire.
To put it plainly, if CBER’s regulatory sphere encompasses private,
uncompensated donations of semen in receptacles due to the disease risk
posed by transmission of body fluids from a new partner, then its basis for
regulation could easily and logically extend to cover exchanges of body
fluids in which no receptacle is involved and instead insemination is
accomplished via physical contact between the donor and recipient: i.e.,
sexual intercourse. 195 This would bring Arsenault as well as donors who
give via natural insemination within CBER’s purview—along with millions
of other sexually active persons. Surely CBER would not agree that it
could regulate such conduct—but the arguments fielded in support of the
order lead to just that conclusion. Even if private donors were subject to
regulation, unlike other biological fathers, due to their stated intent, CBER
would be forced to investigate the subjective intentions of male sexual
partners—an intrusive emotional inquiry. 196
193. CBER, supra note 132, at 10
194. See supra note 137 and accompanying text.
195. Any such extension of regulatory authority over uncompensated private sexual or
procreational activities would be unconstitutional even under Gonzales v. Raich, 545 U.S. 1
(2005) (the Commerce Clause does not extend to regulation of noneconomic activity unless
it has a substantial impact on interstate commerce). Cf. Anne Lawton, The Frankenstein
Controversy: The Constitutionality of a Federal Ban on Cloning, 87 KY. L.J. 277 (1998-99)
(arguing that the Commerce Clause does not preclude a federal ban on cloning because it
may be used in conjunction with in vitro fertilization, a significant business enterprise;
research facilities conducting cloning employ scientists, who share information interstate;
and patients will probably cross state lines to access cloning, just as they do for existing
ART services).
196. The law, recognizing the burdensome nature of such investigations, has arrived at
several solutions for determining paternity absent knowledge of the biological father’s intent.
A general description of these can be found in Richard F. Storrow, Parenthood By Pure
Intention: Assisted Reproduction and the Functional Approach to Parentage, 53 HASTINGS
