FDA Challenges Our Constitutional Right To Start A Family
The right to procreate is not only something taken for granted, but one that many believe is a direct order from a higher power. Nowhere on earth has the right to bear children been put under assault other than China with its One Child Policy. In recent years, groups in Uganda have lobbied for better access to contraceptives due to a population explosion inhibiting reduction of poverty rates. Both the Chinese policy and the concerns in Uganda have been prompted by a fear of over population that threatens economic stability.
Over population doesn't seem to be of much concern in the United States. In fact, with the tug of war between a woman's right to choose and those factions labeling abortion as murder, it would seem that most childbearing issues are based on differing political or ethical views. And while the battle has been waged fervently ever since the landmark decision of Roe vs Wade in 1973, the right to choose a partner for procreation has never been questioned. Until now.
It would seem the Federal Food and Drug Administration is now in the business of determining a woman's right to choose her sperm donor in the event of artificial insemination. Recently, a California woman has taken steps to challenge the FDA's authority to place restrictions on her choice. The FDA has a responsibility to uphold several areas of health care regulation, one of which has to do with regulations regarding standards for sperm banks.
Standards have been set to prevent the spread of communicable diseases and to ensure good tissue practices. Such practices as set forth apply to not only the donors but the facilities themselves, to the environment, supplies, labeling and storage. The need for the rigid standards aren't what is under fire by the plaintiff. No one would disagree that supervision and compliance is a necessity.
However, the plaintiff doesn't want to go through the standard sperm bank or clinic. According to the suit filed on Monday, July 2, 2012, she wants to use the sperm of a personal acquaintance, with none of the usual costs involved – absolutely free. She doesn't feel she should be subjected to the usual federal regulatory compliance games either. Her team of lawyers are calling the FDA rules an unconstitutional violation of her rights to start a family with whomever she chooses.
Amber Abbasi, an attorney for the group Cause of Action, filed on behalf of the California woman, whose identity has been withheld. “When you are regulating private decisions between two individuals in a non-commercial context that have to do with something so intimate and personal as to whether they want to have a child together, then the FDA regulations should not apply,” she has stated.
The unidentified plaintiff is in a relationship with another woman and wants to conceive a child, but doesn't wish to go to a regulated sperm bank because she is intent on knowing the father of her child. She has intentions of the child also having a relationship with the father. Her other concern is the prohibitive cost of going through a sperm bank.
In light of recent events concerning the upheld health care overhaul, the Constitution's Commerce Clause is at the center of this debate. “The Commerce Clause is not a blank check,” Abbasi says. The suit claims that federal regulations on sperm donation are overstepping that clause.
The FDA regulations originate from laws passed in 1944 which allowed for regulations for prevention of communicable diseases. Later, the agency extended the rules to cover sperm banks and their donors in an effort to prevent infection from a multitude of diseases, importantly HIV. These are certainly commendable reasons for putting regulations in place, but the plaintiff is concerned over how far the FDA is attempting to exert its authority.
For heterosexuals who are willing and able to conceive through sexual intercourse, there is no required screening and testing or any other FDA mandates regarding the sperm donor. By requiring a woman who prefers not to engage in a physical act for conception, the FDA regulations can be viewed as a form of coercion to have sex or pay for the privilege of conceiving a child. The plaintiff and her attorneys are asking the court to declare as unconstitutional, any rule which would regulate “private uncompensated” sperm donations.
There's another individual who is likely to take great interest in the case. Trent Arsenault of the San Francisco Bay Area was sent a cease and desist order from the FDA in 2010 because he doesn't follow the agency's requirements for getting tested. From 2005 through 2011, he fathered 14 children and was expecting another four within months, all because of free sperm donations to women who visit his website.
He is the 36 year old son of a minister who believes he is doing a service for those who have fertility issues. He attributes his wish to help as having originated through the many people who have prayed for a child at his father's church. Though he gets tested regularly, he says the FDA's rule to be tested seven days before donating would make it impossible to keep his donations free. Arsenault believes the FDA found him through his website, and claims they have described his service as a business, though there is no money exchanged for his services. Violators of the FDA's regulations can be jailed for a year and assessed a $100,000 fine.
“This is not a business or a clinic. It's just people partnering up to have a baby out of compassion,” he has said.
Physicians and bioethicists are calling the practice of informal donation unsafe for both the mother and the baby. Though many women prefer to use sperm from a donor they know, doctors claim there is no substitute for screening for diseases.
Personally, I'm anxious to see the difference between delivering the required material for conception in a cup or making a personal delivery. Using the issue of safety in a matter so personal and private is simply another instance of government removing choices in the quest to control and manipulate the people. There is a long list of requirements for those who donate sperm, as well as eggs. Clinics are required to keep detailed records of all those involved. The FDA is privy to those records as a matter of inspecting whether regulations are being followed. How long before they begin ruling out people based on race and that race's propensity for certain diseases? Screening to eliminate high-risk genetic diseases is already being performed. I can't help but wonder if applying “safety” regulations to personal choices such as a chosen father, isn't the first step in a veiled attempt at creating a perfect race.
While I understand the need for infectious disease screening, and I totally get that everyone wants to ensure conception of a healthy child through eliminating possibilities of debilitating genetic diseases, I seriously disagree with mandating all who wish to conceive through artificial insemination be subjected to the unnecessary expense associated with profit driven clinics. Nor do I agree with telling wannabe parents that their choice of partner in creating a child must meet the approval of the FDA.