Last fall, the Food and Drug Administration hand-delivered an order to cease manufacturing to a seemingly unremarkable recipient, a soft-spoken, 36-year-old man from Fremont, Calif., who works in computer security. The contents of that letter, however, were anything but ordinary. The agency was demanding that Trent Arsenault comply with federal regulations or stop giving away his fresh semen to women hoping to have a baby. Since Arsenault made his first free sperm donation in 2006, answering a Listserv request from a Bay Area teacher who is now mother to a 4-year-old boy, he claims to have fathered 13 children, with four more on the way.
So today’s question is one I’ll bet you probably haven’t given a whole lot of thought. Lord knows I haven’t….
Let’s say that you’re a healthy male in your mid-30s- strong, blond, blue-eyed, intelligent. One thing led to another, and you now donate your sperm to women, making connections via da Interwebs. You charge nothing for your sperm, and the women involved do not hold you responsible for child support. All of this being the case, you’d think that, being that no one seems to have any complaints with the arrangement, everything would be copacetic…right?
Unfortunately, if you’re the FDA, you have all manner of problems with this arrangement. This is the dilemma Trent Arsenault faces as what the FDA calls a “manufacturer” of sperm (Uh…isn’t every male with functional plumbing a “manufacturer” of sperm?).
In the eyes of the FDA, Arsenault is running the equivalent of a sperm bank. Evidently, this means there are all manner of rules and regulations our hero is in violation of.
We’re from the government, and we’re here to…oh, never mind….
The FDA claims that Arsenault is running a business that’s in violation of regulations that require sperm banks to have their donors tested for STIs within 7 days of donating sperm. Sperm banks also typically separate the actual sperm cells from the rest of the ejaculate to reduce risk of contamination, which means Arsenault is selling the fertility equivalent of unpasteurized, unfiltered cow milk. And because he’s dealing in human cells, he faces some stiff penalties if he doesn’t comply with the FDA’s order— up to $100,000 in fines and a year behind bars.
Arsenault claims that he’s not running a business- no money is changing hands- and therefore FDA has no dog in this fight. Since in his mind he’s merely providing a service gratis to women who go into the process with their eyes open and no expectations, there’s nothing to regulate…and I’d have to agree with him. Look at it this way; if Arsenault was using da Interwebs to meet women who want to get pregnant and has sex with them (not that this EVER happens, mind you), FDA would have no jurisdiction. This scenario could only be considered consensual sex between willing adults. The women would still be pregnant, and Arsenault would still be the “sperm donor”.
The previous example is essentially what’s happening, except that Arsenault’s “transaction” with each of the women receiving his sperm involves no sex (just a Penthouse and a turkey baster) and no money. It’s a consensual contract and transaction between two individuals, each of whom enters the arrangement of their own free will.
I understand that from a health (and perhaps even a moral) standpoint, what Arsenault is doing may not be ideal, but I can’t help wondering what jurisdiction FDA has in this situation. No money changes hands and willing parties to the arrangements. From a legal standpoint, what Arsenault is doing is not a business:..’course, I’m not an attorney, so what do I know??
business n. any activity or enterprise entered into for profit. It does not mean it is a company, a corporation, partnership, or have any such formal organization, but it can range from a street peddler to General Motors. It is sometimes significant to determine if an accident, visit, travel, meal or other activity was part of “business” or for pleasure or no particular purpose.
While you or I might not want to be doing what Arsenault is, no one’s getting hurt, no money is changing hands, and the women involved enter into the arrangement of their own free will. So what role and/or jurisdiction should FDA have in this matter? I can’t see where they could have ANY dog in this fight; if Arsenault’s smart, he’d hire an attorney and loose the dogs of war on FDA.
Then again; perhaps Arsenault should just have sex with each of the women. Problem solved….
