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University of Chicago Legal Forum

Abstract

For the better part of a century, the United States Supreme Court has issued a series of decisions, “the underlying premise of [which is] that the Constitution protects ‘the right of the individual . . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.’”1 The most controversial line of such decisions, protecting from “unwarranted governmental intrusion” an individual’s right to choose to terminate a pregnancy through abortion, 2 has been decisively overruled.3 The same conservative justices who have eliminated abortion rights have for the entirety of their legal careers expressed skepticism of or downright hostility to the entire line of cases in which their predecessors on the Court have protected sexual and reproductive rights. 4

Now might therefore be a particularly opportune time to examine with lawyerly precision exactly what this line of cases can be read to actually protect, as well as to begin to consider how much of these protections may be vulnerable in the aftermath of the successful attack on abortion rights. This article will undertake such an examination from an unusual angle. It will focus on the motivations and behaviors, the resulting legal problems, and possible rights claims of men who make an unusual set of decisions to beget children; they offer their own fresh sperm on a non-commercial basis directly to significant numbers of women, often not personally well known to them, for purposes of DIY artificial insemination. Among the legal risks these high volume non-anonymous sperm donors run is the prospect that the Food and Drug Administration, as well as state regulatory authorities, can threaten them with fines and imprisonment if they continue to provide their sperm without either complying with the restrictive and expensive rules for commercial sperm banks or demonstrating that they are exempt from these rules because, notably, the person to whom they will transfer their fresh sperm for insemination purposes is “a sexually intimate partner” of the donor. 5

The FDA regulations leave the term “sexually intimate partner” undefined, which itself raises interesting questions in light of the variety of sexual practices and attitudes manifested in connection with sperm donation. But even more remarkable from the perspective of doctrinal constitutional law is that the regulations, which have not successfully been challenged in court, explicitly privilege sexual intimacy. This, as will be discussed below, seems a poor fit with the regulations’ goal of protecting health and safety, but is a much better fit with the actual holdings in the line of modern substantive due process cases covering sexual and reproductive rights, which, if carefully analyzed, can be seen to more clearly, frequently, and unequivocally protect a right to sexual intimacy in the absence of procreative intent (or even procreative possibility) than they protect a right to procreate.

As I delve into the doctrine, I will also provide a more concrete sense of what is at stake by describing in some detail the situations of three actual high-volume providers of fresh sperm, each broadly representative of a type of donor that raises distinct legal issues with broader implications. The first is Trent Arsenault, the original, self-described Donorsexual, whose reproductive activities are tightly connected to sexual practices he himself sees as amounting to a sexual orientation.6 The second is Ari Nagel, best known by the sobriquet the Sperminator bestowed on him by the New York Post,7 but who calls himself, as I will call him here, Super Dad,8 because of a commitment to be as much as possible an involved father in the lives of his more than 100 donor offspring.9 The third, who calls himself Joe Donor to conceal his identity, I shall use in passing as an example of those men whose announced goal is to maximize the number of their donor offspring in explicit quest of a world record, and who prefer to provide their sperm donation in the form, not of transfer in a sterile receptacle for artificial insemination (A.I.) by the recipient, but of so-called natural insemination (N.I.)—i.e. unprotected vaginal intercourse for the purpose of impregnation.10 I have selected these three for the purposes of illustrating the landscape of the law, not because I see them as in any way representative of the by now quite large and varied pool of free sperm donors who offer their services on a variety of internet sites and other venues.11 Although free sperm donation is not only a worldwide but also a cross-border phenomenon, and although two of the men I discuss, Ari Nagel and Joe Donor, travel the world over to provide their sperm to persons of many nationalities in many foreign venues, my focus is on American law and the activities of the donors within the United States.

The doctrinal conclusion of my reflections on where the law with respect to these donors may stand after Dobbs will not be any of the now familiar modern substantive due process cases, but instead an older equal protection case, Skinner v. Oklahoma.12 In 1942, Skinner vindicated more directly than any other case before or since the right to procreate. The Court held it to be a violation of convicted chicken thief Jack Skinner’s fundamental right to procreate for the state of Oklahoma to order him to be sterilized when those convicted of equally serious crimes like embezzlement were not eligible for state-imposed sterilization.13 Although its age and the legal basis on which it rests shelter Skinner’s holding from the full force of the destructive tornado unleashed by the Dobbs majority on other Supreme Court sexual and reproductive rights decisions, new questions inevitably will arise in a post-Dobbs world when applying strict scrutiny, as Skinner requires, to laws restricting for some and not for others what the opening sentences of the Skinner majority opinion called “a sensitive and important area of human rights . . . the right to have offspring.” 14

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