Academic journal article The American University Journal of Gender, Social Policy & the Law

Life Begins at Ejaculation: Legislating Sperm as the Potential to Create Life and the Effects on Contracts for Artificial Insemination

Academic journal article The American University Journal of Gender, Social Policy & the Law

Life Begins at Ejaculation: Legislating Sperm as the Potential to Create Life and the Effects on Contracts for Artificial Insemination

Article excerpt

I. INTRODUCTION

In numerous legal cases dealing with artificial insemination through sperm donation, courts have elevated sperm, a substance that alone cannot result in a child, to the status of a potential life.1 Unlike rulings on the control or sale of blood, bone marrow, organs, or even faces, rulings on sperm have often privileged sperm as a substance that is something more than a body part or product. Courts and commentators that make this distinction refer to sperm's "potential to produce life"2-in effect, elevating it to a status that ultimately treats sperm as equal to a life. More than half the states in the United States have no legislation to direct judges in cases dealing with sperm used in artificial insemination.3 Without legislative guidance, judges have allowed personal and religious values to influence their rulings. These judicial rulings may negate the right to contract, placing men willing to donate sperm for artificial insemination at risk of enforced financial support of numerous children, and placing women- whether single or part of a lesbian couple-at risk of losing parenting rights by granting custody rights to sperm donors.4 Clearly, such rulings introduce unintended consequences into cases involving sperm donation.5 The unpredictability of judicial interpretation in cases involving artificial insemination is particularly magnified in situations involving single women or lesbian couples; these women lack other legal protections, and they may face additional prejudice in child custody matters arising from artificial insemination procedures using donated sperm.6 Furthermore, in light of recent state referenda attempting to legislatively set the point at which life begins,7 such rulings could lead to serious limitations on the use of donated sperm for anyone other than married, infertile, heterosexual couples for which a donor "stands in" for the husband.8

Without clear policies regulating contracting for sperm, legal cases have been decided by reference to sperm's status as potential creator of life, ultimately resulting in courts treating sperm as if it were the child itself.9 However, treating sperm as life or potential life in the legal context requires an erroneous conceptual leap in both property law and science. By elevating sperm to a "higher" status of property law, courts have, in legal effect, established that life begins at ejaculation.

This Article reviews the religious contexts that lead to the judicial treatment of sperm as life, and the scientific contexts demonstrating the misunderstanding of biology informing such beliefs. This Article then reviews the current state of the law regarding donation of sperm for artificial insemination and clarifies the mistakes courts and commentators make when they elevate sperm from a freely transferable commodity to a category of property that has the potential for life-or is life. To accomplish this, this Article compares cases involving sperm with cases involving the donation of other bodily fluids, useable organs, and tissues. Finally, this Article demonstrates the potential for absurd consequences that flow from the current faulty reasoning employed by courts in cases dealing with sperm in states lacking legislation protecting the donor, ultimately arguing that clarification is needed in laws regarding sperm donation-particularly the categorization of sperm as property for which contract law applies.

II. RELIGIOUS AND HISTORICAL CONTEXT OF SPERM

Although much of current law is based on Judeo-Christian mores, current law related to sperm and familial relationships is often based on an inconsistent application of Judeo-Christian biblical texts.10 Admittedly, an assertion that American jurisprudence is based on Judeo-Christian law conjures objections, based largely on an understanding of the First Amendment to the Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . …

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