My last post was about an order issued by the FDA directed towards a man named Trent Arsenault. Arsenault provides fresh sperm for free via his website. (I didn’t link to this before. It’s fascinating and probably worth a look if the topic interests you.) While Arsenault doesn’t exactly resemble a sperm bank, the FDA seems to be trying to regulate him as though he were one.
This, of course, makes for lots of interesting questions. Among them–
What’s the difference (if any) between a for-profit sperm bank and Trent Arsenault? Money/profit? Volume? Fresh/frozen?
What’s the difference (if any) between The Sperm Bank of California (a not-for-profit sperm bank) and Trent Arsenault? Some of above plus Arsenault doesn’t touch money at all while TSBC does sell sperm using the money to cover expenses, etc.?
What’s the difference between Trent Arsenault and a man who has had sex with dozens of women, most of whom he hardly knows? (No one thinks the latter can be regulated by the FDA (or any other government agency.)
This last leads to some interesting trains of thought. Simple reasoning might suggest that the man who has sex with all those women would ordinarily be the legal father of the children. while a man who provides sperm for insemination via ART is often not a legal father. Thus, you might try to argue that the fact of legal paternity somehow regulates the individual who is free-lancing via sex while it doesn’t regulate people like Arsenault and thus this other regulation is needed.
But that’s not the law in CA (which is where this is happening). In CA the donor like Arsenault (no doctor) is in the same legal position as the man who has sex. For both, if a married/domestically partnered woman gets pregnant via sperm from a man not her husband, the mother and her spouse can assert legal parentage and defeat any claim by the sperm provider. Notice that Arsenault will only provide sperm to women who are married or domestically partnered. (See question 12 here.)
I’m not sure why Arsenault has this restriction–it could just be his own judgment on who is worthy or it could be motivated by legal concerns. But he’s actually still at some risk, since if the couple he has assisted split up, he cannot enforce the presumption against them to bar a paternity action. In any event, it’s hard to see a justification for treating the two men I’m imagining differently. If anything, the FDA’s action could be said to create a perverse incentive in favor of the man who inseminates via sex.
There’s one other thing that is bothering me. Arsenault says he is motivated by altruism and in general I’m rather a fan of altruistic behavior. I believe in the possibility that egg donors and surrogates and sperm providers might be motivated by altruism and I think it is a good thing. Why is it that I find Arsenault’s assertion of purely altruistic motivation hard to believe? Because truth to tell, I find myself deeply skeptical.
It’s not that Aresnault takes money. I don’t believe that he does. I think it is that there seems to be something so supremely egotistical about the way he’s doing this. It’s not like he’s helping a friend or even a friend of a friend. This leads me to wonder whether egotism is inconsistent with altruism. Could he be egotistical and altruistic at the same time? I don’t exactly see why the answer to this is no.
So I’m just left a little bit puzzled about the whole motivation part. And of course, I don’t see why motivation would be relevant to any FDA regulation.
In a larger frame, all the reactions to this seem to me to be consistent with a preference for conception via sex. Is there really any good reason for that? We might once have argued that sex was associated with committed partnerships so that favoring conception via sex was a way of ensuring that children grew up with two parents. (Assuming, of course, you assume that’s a big plus.) But can we even make that assumption? Too much more to say about this, so it will wait for the next post.