Regulating DIY Insemination?

[I’ve amended this to correct a mistake about the law I had in my original post.]  A while back I wrote about DIY (as in “do it yourself”) insemination.  This is at once a rather new and a very old development.   (For many years people at least talked about “turkey baster babies,” which were the product of home inseminations.)  But I confess that the modern incarnation of the practice (Craig’s List and all that) seems awfully problematic.

Anyway, now it appears that at least one regulatory body wishes to restrain the practice.   (Warning:  The second link there is to a page that has a really annoying ad on it that I cannot seem to get rid of.  That one agency is the FDA and as the article I’ve linked to explains, it’s contending that Trent Arsenault, who has apparently provided 328 donations to 46 couples without charging any money, is “firm” manufacturing human cells and since this “firm” isn’t following the existing regulations for such a business, it must shut down until it can demonstrate compliance.   

There’s a host of legal questions that pop into my mind.  Of course, any man who can produce sperm is indeed manufacturing human cells.  Actually, I suppose we are all manufacturing human cells all the time.   So perhaps the critical thing is the FDA categorizes Arsenault as a “firm.”    (If I want to be really picky here, the letter is apparently a “Cease Manufacturing” letter and I don’t think Arsenault or any of us can actually cease manufacturing human cells.  Shouldn’t it be “cease distribution.)

But underneath all this, there are some far more interesting (to me, anyway) issues.   For instance, presumably the FDA would have no hold at all over Arsentault if he provided semen via intercourse.   There’s nothing illegal about having intercourse with a lot of different women.   He could even have intercourse with women he hardly knew for the specific purpose of impregnating them and there’d be no possibility of claiming he was violating FDA regulations.  (In a bizarre way the FDA enforcement action might actually be encouraging him to do this in the future.)

Would that conduct (offering sperm delivered via intercourse) in any way preferable to what he was doing here?   Perhaps we should say it is, because I suspect fewer couples would be interested in his services if they involved intercourse.   But I’m not sure that’s strong reasoning, really.

For me part of what this points out is the line that is drawn between conception via intercourse and how conception not via intercourse.  Conception via intercourse is unregulated conduct in which the state claims no interest.   Conception not via intercourse is regulated conduct in which the state does claim an interest.

That makes sense when you think about regulating a large sperm bank vs. regulating a couple engaging in sex at home.   But when you think about an individual man who is providing sperm to people he doesn’t know, it’s a harder line to explain.   Why would the question of how he delivers the sperm become the critical feature?  Or is this just a necessary oddity of an otherwise sensible system?

The same line is terribly important–at least in CA where Arsenault lives and works–for another reason.   In CA if Arsenault delivers sperm via intercourse he would be a legal parent to the child, unless it happened that the couple he was helping out was married.   Were they married, they could invoke the marital presumption to defeat any claim by Arsenault.   But if the couple were not married or if Arsenault impregnated a single woman via intercourse, he would be a legal father.   Huge implications there.   By contrast, if he provides sperm outside of intercourse and if somewhere along the line, a doctor enters the picture, than under CA law he isn’t a legal father of the child.   (Then again, if you do this totally privately and no one involved is a doctor, he is a legal father.)

Here again we circle to a point I’ve discussed.  Why does it make sense to have his status as a legal parent turn on the manner in which the sperm arrives in the woman’s body?  And even if that makes sense, why does the presence of a doctor change the result?

Finally, I must end on a note of caution, because I do have this worry.  If Arsenault’s sperm is used in some other state (and maybe this won’t happen, given he provides fresh only, not suitable for shipping), then a whole different set of laws could apply.  That’s something to worry about if there’s copycats out there.

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33 responses to “Regulating DIY Insemination?

  1. Great entry, however your assumption of California law is incorrect. The law, as it stands now, is physician assisted. Which means that any man who does a DIY AI could be interpreted as the father. In California and several other states, the artificial insemination MUST go through a physician in order for all/any parental rights to automatically be terminated.

    • Yikes–a terrible error on my part. I’ve changed the text to reflect the correct law. (It’s not the law here in WA, where all donors aren defined to be not a father.) Thanks.

      • I completely understand! I live in Florida, it’s the same (re:AI nullifies and terminates parental rights by the mere fact that it is artificial insemination and the intent of both parties at the time of conception is taken into consideration), however, my donor lives in California so recently I had to become well versed in multi-state laws on the issue.

        Kudos for a stellar blog!

  2. I don’t agree with what this guy is doing but I think the government has no right to get involved. Except for incest, anyone has the right to reproduce with whomever they see fit. Especially since he is not charging any money. Perhaps if he was, he could be held accountable for interstate commerce.

    Initially this looked to me like the classic of government stepping on the little guy while supporting big corporations, but then again I suppose the main concern is that he could be spreading diseases.

    • He’s no more likely to spread disease than a man who has sex with multiple partners. Indeed, he’s possibly/probably less likely, as it appears he regularly tests for STDs and also cares about this–not qualities you would always find in promiscuous men.

  3. Call me a cynic but I would suggest that the industry is the one pressuring the FDA to close him down because if he stays in business and others follow his lead it will reduce the profits.

    According to the last article linked he has medical reports regarding testing clean for STD’s, and if I remember correctly, the regulartory/health agency that created the guidelines for donors that the industry states they follow, only requires STD screening. They may recomend other screening for some hereditary diseases but I don’t think they mandate it be done.

    • I’m not an expert on any of this, but I know industry standard is six-months quarantine for retesting for HIV. That’s because you can be infected with HIV but not test positive for six month. What this means is that it is very difficult to get fresh sperm these days–all the banks freeze and hold it until the provider retunrs six months later.

      The pregnancy rate is higher when fresh sperm is used (the freezing really does diminish sperm count) so this might be a competitive advantage that Arsenault has (relevant to your point about the banks) or it might be a danger that the FDA is trying to control (relevant to their mandate). Or of course, it could be both.

  4. julie you would probably agree that if he could legally be classified as a parent- anywhere- this further weakens the FDA case in trying to classify him as a tissue manufacturer. So there is some sort of relationship between the two things.

    • What an interesting question/point. I’m not sure whether I totally agree–and here’s my reservation. I worry a lot about the law that might be applied in particular cases of conception through use of donor sperm. In some places genetic link would make you a legal parent while in others it wouldn’t.

      So take a big sperm bank in state A. It’s subject to FDA regulation because they sell sperm and generally no one questions the authority of the FDA. I worry that if they ship sperm to state B where parentage is determined solely by DNA then the donor is a legal father. (I realize that if the provider is anonymous this may provide some legal protection, but it actually doesn’t change the fact that the unidentified provider is a legal father.) So in that instance the provider is a father but the FDA can regulate the bank.

      I don’t think this is quite the point you were making, though. Arsenault, for better or worse, is an individual distributing only his own sperm. Thus, he doesn’t look like the sperm bank above. And I think you are on to something–if he were deemed a father than it is hard to say that the FDA could issue their order. The government cannot prohibit a person from engaging in reproduction.

      All this feels incomplete to me. I think this warrants further thought. Thanks.

  5. And to the adopted ones, you are probably right that thhe corporations are promping the FDA because why would they get invovled if no one had submitted a complaint?

    • I wonder if there’s been enough more publicity that the FDA worries about this practice getting out of hand–which is not to deny the possiblity that the sperm banks have a hand in it all. One guy doing this cannot really threaten their market, but the article about Craig’s list donors some time ago might have made them (either the FDA or the sperm banks or both) nervous.
      https://julieshapiro.wordpress.com/2011/10/04/free-range-art-get-your-fresh-sperm-here/

      There really could be serious concerns about the use of fresh sperm and even if Arsenault is totally honest in all respects, you wouldn’t want to assume that everyone who followed in his footsteps would be.

  6. In Canada Sperm used for artificial insemination is classified as a drug and is strictly regulated (freezing, screening etc.) The only people exempted from the regulation are spouse or current sexual partner. The thinking behind the regulation is not difficult to understand. Sperm is an active biological agent and as such represents a health risk to those who are exposed to it. You are also not allowed to treat other people with drugs that you have bought in a pharmacy (unless you are a physician). You also can’t sell food products like meat to other people without complying with food and health regulations (but you are allowed to use the meat for your own and your family’s consumption).

    • I get that, but two people could meet in a bar and end up having sex without even exchanging names. No one would say this conduct could be regulated because sperm is a drug. Is this distribution of sperm more dangerous than that one?

      I understand that the regulations were drafted with larger operations in mind and all that. But it seems to me that the meat analogy is imperfect because it is in fact permissible to distribute you sperm, it just matters how you do it. Somehow engaging in intercourse shields the provider from regulation–because I suppose sex is a favored activity? Or private? It is a little odd, I must say.

      • Julie, you say: “I get that, but two people could meet in a bar and end up having sex without even exchanging names. No one would say this conduct could be regulated because sperm is a drug. Is this distribution of sperm more dangerous than that one?”

        It is a question of responsibility. Transferring sperm through sexual intercourse is considered to be ‘natural’ and therefore not regulated, except if you know that you are HIV positive (in some jurisdictions). If you go beyond that, you are in a very different position. Transferring sperm is no longer just a byproduct of a sexual relationship, but a ‘treatment’. It is stripped of conventional social content and becomes comparable to a medical treatment (usually, you are not in love with your doctor). Such treatments are of course regulated by law.

        You also say: “I understand that the regulations were drafted with larger operations in mind”. No, the comments in the regulations clearly says that it applies to individual operations. As a matter of fact, larger operations hardly exist in Canada anymore, but this is besides the point. The regulations take into account the common sense fact that to use ART with your current sexual partner does not increase an already existing risk. This is much the same as the common sense rule which allows people to produce their own meat in their backyard, but not to distribute it.

        • It seems to me that there are two different points here. One, sort of in passing, is that distributing sperm via intercourse is “natural’ and not a treatment–the sperm distribution is just a byproduct of the sex. I think there’s a lot to that in the sense that it does seem to me to explain what is going on. But does it actually make sense? Perhaps once the social meaning of sex was such that people wouldn’t have sex with someone they just met for the purposes of getting pregnant, but I wonder if this is still true? Or still as true.

          I suppose what I am thinking here is that the “natural” part doesn’t make it less dangerous or less problematic unless you make some assumptions about who has sex when–that it is between partners in a particular context. Are those still reasonable assumptions? Were they ever? In other words, I want to challenge your common sense fact.

          Second, I accept your point about Canadian regulations–you surely know better than I. But the meat producer analogy doesn’t work. It’s as though the backyard meat producer could engage in some forms of distribution (say in a box) but not in others (say wrapped in plastic.)

  7. Since it’s perfectly legal for people to have unprotected sex with multiple partners, I really don’t see why the *Food and Drug* Administration is involved with this. Health Canada and the NYSDOH have also been targeted private donors btw. It just looks like the fertility industry (and that’s what it is) are using their influence to try to protect their profits.

    Disclosure: I help run two of the largest sites for private sperm donors.

    • Right–what you said. If it is legal to have unprotected sex with multiple partners and deliver sperm that way (and it generally is), then why is this not legal? Is it just a spill-over from regulation of larger banks, nearly all of which are run for profit?

      I think this is one of those places where you can see an odd seam in the law–a place where two pieces of the law (that governing ART and that governing sex) come together and don’t fit properly. Much of the regulation of ART is based on drawing this line between conception via sex and conception via insemination or other non-sex. But in specific instances this line seems bizarre (at least to me). I do understand that for some that line makes sense–and I think that is mostly for people who would say that only conception via sex is acceptable. (The Catholic Church takes this stand.) But I have a hard time seeing why that should be, too.

      • I think there may be a difference because he could access many more people via advertising free sperm than via intercourse. I could be wrong but I don’t think most people have such high numbers of sexual partners.

        • This could be true and it could go to the question of whether he is setting some form of precedent–showing others what can be done. In which case various interests might want to stop him as an example to others. But it also seems to me that while most people don’t have such high numbers of sexual partners, some do. And using the internet to advertise them is hardly unknown.

          I think we could probably agree that there is a line drawn between folks like Arsenault and those who might impregnate women via intercourse. The question really is whether that line makes sense.

          • I’m confused –is it sexual intercourse, or sex? Because, didn’t Bill Clinton have sex with Monica Lewisnky? That case defined what “sex” is and is not. And, more importantly, Bill and Monica never had sexual intercourse. Therefore, a person can artificially inseminate through sex without having intercourse, correct?

            Or, perhaps more succintcly, a person can get artificially inseminated through sex without having sexual intercourse.

      • Julie, You say “If it is legal to have unprotected sex with multiple partners and deliver sperm that way (and it generally is)”.

        I don’t know what exactly you mean be ‘generally’. California has passed the “willful exposure” law which makes it a felony when an HIV infected person willfully exposes another to the disease through sex. Some twenty seven other states have enacted criminal statutes that allow for prosecution of those who know they are infected with the HIV virus and engage in sexual conduct without disclosure. States such as Alabama and South Carolina have extremely broad statutes which invoke penalties if someone “conducts themselves in a manner likely to transmit the disease.

        In some other jurisdictions wrongful transmission of “a sexually transmitted disease is a legitimate basis for a lawsuit demanding compensation.

        My point is that unprotected sex is governed by law. Going beyond sexual intercourse and using ART corresponds to the difference between treating yourself with a drug and treating others with the same drug. We all know this makes a big difference in the eyes of the law. The Canadian law of ART should be seen in this perspective.

        • If the donor has regular negative tests for HIV though, then the risk is considerably less than most unprotected sex. The only difference is that the intention of both parties is conception. Porn stars routinely have unprotected sex with dozens of promiscuous partners every month without being pursued by the *Food and Drug* Administration.

          In this particular case in California, it is my understanding that the donor (Trent Arsenault) has *never* had unprotected sex (he says he’s a virgin), which makes the risk of HIV transmission almost zero.

          This isn’t about minimizing the risk of disease transmission, it’s about restricting the rights of people to choose how they build their families.

        • It’s true that there are some rules about transmission of HIV and other STDs. But if you are uninfected then I think you are free to have sex with others for the purpose of impregnating them (as long as you don’t take any money for it, of course). At the same time, you are not free to just give women your sperm without having sex with them. This seems a tad odd to me.

        • YIKES! that sounds like way too much government involvement.

          • ( I was referring to the goverment policing HIV positive folks having sex. Ya know what? I’m a grown woman and protecting myself is MY responsibility and no one elses, not my potential sexual partners and certainly not Uncle Sam’s.)

    • He isnt having unprotected sex. Thats the point. He is distributing semen. You cant do that. And if you are helping to run sites you need to do your homework. If Trent doesnt stop this and bring down his site- or change the wording so he ISNT offering Ai then there will be a ruling. And then the sites you help run will have to close – at least in the US. Canada is also taking the same tack. This isnt about whats right or wrong, its about the law and public health.

      • Believe me, I have done my homework, and Beth has also been in touch with some LGBT legal support groups. All private donors are “distributing” semen. I don’t think Health Canada, and especially not the FDA can argue that a tested donor such as Trent giving someone a container of fresh semen to an informed consenting recipient is illegal, but having unprotected sex with that same recipient would be legal. That stance would be wrong on legal and public health grounds, as well as ethically wrong. I’m surprised they’re taking on a battle that I think they suspect themselves they will lose.

  8. Ive posted on another blog in relation to this so I wont repeat myself too much but bottom line is that he is allowed to donate through FSDW etc (hes been a donor there for about 8 years) but not through his own personal site. He cant advertise to distribute directly. It is illegal. The health authorities are right about this- major issues re public health and once you advertise directly like that you must comply.There was a case in the UK about 5 years ago so its nothing new. If he was advertising to have sex he would be ok. And he is still ok to donate through FSDW. However this is likely to set legal precedence which will lead to sites like FSDW being closed down (see my other post about that) because if he doesnt stop this legal precedent will be set and then we are screwed! Men will be prosecuted for advertising to donate through AI! Its the Ai that is the issue. A direct deposit would be ‘legal’. Madness. Youll know Ive been fighting to separate private sperm donation from sex for years for a range of reasons…

    The reason for posting on here is that -the idea of a six month quarantine is outdated. You said ‘That’s because you can be infected with HIV but not test positive for six month’. Thats inaccurate. You can get an HIV test that shows the anitbody within 14 days. My friend is a doctor and says the fertility industry rely on people thinking this six month quarantine period is necessary as so you shouldnt accept private donations. In reality modern technology allows us to test accurately.

    • I don’t think it makes any difference whether he’s advertising through his own personal site or one of the other sites.

      There are details of Trent’s correspondence with the FDA here: http://trentdonor.org/cease

      The FDA are saying that “recovering and distributing” semen brings him under their jurisdiction, but frankly, I don’t think they can win a legal battle against either Trent or any of the donor sites, and I’m pleased to see that Cause for Action are defending him. The stance of the FDA Health Canada seems to be against the interests of public health or civil liberties.

  9. This sounds like a feminist issue. “My body My Choice.” As a woman, I should have the right to become pregnant in whatever way I want. A man has rights over his body, too. The law regulates sex in that one cannot pay for it, there is a legal age of consent, and some states have laws on what sexual positions are illegal! Sex is highly regulated. Two consenting adults are given little freedoms when money and age come into play. (pun)

    It also seems like the word, “artificial,” is the trigger point for the legal locomotive against this gentleman. If he were to advertise, “Insemination! The old fashioned way!” It could be interpreted via, “turkey baster.” Or it could infer sexual intercourse.

    However, AI has been around for hundreds of years. So why all the fuss now? It is a business that cannot be taxed. It is also a business that can be dominated by a fear factor –the fear of potential STDs, of no background check, possible future court battles if your known donor changes his mind about wanting parental rights, no profile, no medical history… ad naseum!

    While I am sure there is a huge market for the demographic who are “germo-phobes,” or for women who cannot locate a known donor or prefers the anonymity of going through a clinic, then there is no problem.

    Those folks are also the ones subjected to having to pay extraordinary costs for a diminished product as sperm loses its viability upon freezing. They are also open to discrimination from doctors. Single women are often turned away because the doctor has personal objections. The health insurance industry can choose which fertility services to pay for –which becomes lucrative for a person/couples who want AI and are shopping around for insurance providers. Also, sexual orientation becomes a public issue for couples prefering privacy.

    Gentlemen like Arsenault circumvent a system and deprive many hands of many dollars in a booming industry of alternative reproductive technologies. Everyone wants to own a piece of the pie. Doctors, clinics, banks, insurance, IRS, the list goes on. It only *makes sense* that these entities would want it to be regulated.

    Unfortunately, just like the war on drugs or prostitution, it will only open up a black market and criminalize an activity that has been around for thousands of years.

    And Arsenault makes a perfect scapegoat to browbeat into submission and set a precedence for the corporations. Let’s look at this issue for what it truly is: A feminists’ issue for both men and women. Ultimately it boils down to my body, my choice.

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