[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.