Reproduction Reconceived Courtney Megan Cahill

University of Minnesota Law School Scholarship Repository Minnesota Law Review 2016 Reproduction Reconceived Courtney Megan Cahill Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Cahill, Courtney Megan, "Reproduction Reconceived" (2016). Minnesota Law Review. 146. https://scholarship.law.umn.edu/mlr/146 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article Reproduction Reconceived Courtney Megan Cahill† Introduction ............................................................................. 618 I. Reproductive Binarism and the Law ................................ 624 A. State Regulation of Paternity ................................ 624 1. Sexual Insemination ......................................... 625 2. Alternative Insemination .................................. 630 B. Federal Regulation of Semen Providers ................ 635 C. Proposed Regulations of Alternative Reproduction ........................................................... 638 D. Exceptions to Reproductive Binarism in the Law .. 642 E. Summary ................................................................. 644 II. Reproductive Binarism Explained .................................... 645 A. Constitutional Explanation .................................... 645 B. Conceptual Explanations ....................................... 646 1. Sex Exceptionalism ........................................... 646 2. Intimacy Essentialism ...................................... 650 C. Historical Explanation ........................................... 653 III. Challenging the Binary: Factual Inaccuracies ................. 655 A. Similarities Between Sexual and Alternative Reproduction ........................................................... 656 1. Assisted, Non-Intimate Sexual Reproduction .. 657 2. Intimate and Unplanned Alternative Reproduction ...................................................... 662 B. Perfect Identity Between Sexual and Alternative Reproduction ........................................................... 668 † Professor of Law, Florida State University, College of Law. I am grate- ful to Rene Almeling, Susan Appleton, Michael Boucai, Naomi Cahn, June Carbone, Martha Ertman, Dov Fox, Michele Goodwin, Germaine Gurr, Doug NeJaime, Marc Spindelman, and Manuel Utset, for sharing their illuminating thoughts and suggestions with me throughout the various stages of this pro- ject. Many thanks also to the participants at the 2016 International Baby Markets Congress at U.C. Irvine, where a version of this paper was presented, and to the editors at the Minnesota Law Review, who provided excellent edito- rial assistance. Copyright © 2016 by Courtney Megan Cahill. 617 618 MINNESOTA LAW REVIEW [101:617 C. Summary ................................................................. 670 IV. Challenging the Binary: Constitutional Deficiencies ....... 671 A. Alternative Reproduction as a Fundamental Right ........................................................................ 671 B. The Devolution of Sex Exceptionalism .................. 676 C. Familial Disestablishment ..................................... 681 D. Procreative Intentionality and Purposeful Parenthood .............................................................. 684 V. Reproduction by Intent ...................................................... 685 A. Toward an Intent-Based Model of Reproduction ... 686 B. Anticipated Objections ........................................... 690 1. Objections Relating to Health and Safety ........ 691 2. Objections Relating to Sexual Conception Contracts ............................................................ 691 3. Objections Relating to Unintended Consequences on Paternity ............................... 694 Conclusion ................................................................................ 696 INTRODUCTION A single woman uses an anonymous sperm donor to have a child. She spends hours poring over his file at the sperm bank, learning intimate details like his favorite color and his grand- mother’s medical history. She becomes pregnant with this do- nor and gives birth to a baby boy; the donor is not the boy’s father. By contrast, a different single woman has a one-night stand with a man whom she met only hours before; she barely remembers his eye color, let alone his name. She, too, becomes pregnant with this man and gives birth to a baby girl; the man is the girl’s father. A married couple uses a fertility specialist to facilitate conception through alternative insemination. The husband, a chronic liar and adulterer, provides the specialist with a vial of semen; the specialist inseminates the wife without first testing the semen for communicable diseases like HIV. By contrast, a single woman contacts a man who decides to advertise over the Internet free alternative insemination services; they become very close friends, sharing life histories and intimate personal information. They pursue alternative insemination, but are dismayed to discover that the government requires donations between certain partners who are not “sexually intimate” to be tested for communicable diseases like HIV.1 The testing is cost- 1. See 21 C.F.R. § 1271.90(a)(2) (2012) (exempting from the Food and 2016] REPRODUCTION RECONCEIVED 619 ly, so the man discontinues his services and the woman instead contacts a sperm bank, buying semen that carries a hefty price tag—$800.00 a vial—in large part because of the government’s mandatory testing requirements for procreative partners who are not “sexually intimate.” A same-sex couple falls in love with an anonymous donor from a sperm bank; the couple intends to purchase vials of his semen within the year. To the couple’s disappointment, the government passes a law banning anonymous sperm donation in order to protect children’s right to know their genetic progen- itors. The donor, who desires anonymity, retires from the bank’s donor program, forcing the couple to choose a less desir- able open donor. By contrast, a single woman has a child after a one-night stand. When the child is eight years old she asks her mother about her “father”; the woman tells her daughter that she lacks any identifying information, including a name, about him. Some of these vignettes, like the first two, reflect laws that apply today in most jurisdictions. Others, like the third, are emblematic of proposed regulations of alternative reproduction that several commentators, conservative and progressive alike, support.2 All of them reflect and perpetuate this Article’s sub- ject of critique: reproductive binarism, the belief that sexual and alternative reproduction are essentially different in fact and therefore deserve different treatment in law. Reproductive binarism governs large swathes of intimate and family life, from paternity determinations3 to the federal regulation of gamete providers4 to the myriad proposed regulations of alternative reproduction that have surfaced in recent years.5 Reproductive binarism sustained marriage discrimina- Drug Administration’s mandatory testing requirements for human reproductive cells or tissue semen donations between “sexually intimate partner[s]” but requiring testing for donations between non-intimate partners). 2. Progressive scholars have relied on reproductive binarism to justify limits on alternative reproduction, see infra Part I.C., as have former oppo- nents of same-sex marriage. See Courtney Megan Cahill, The Oedipus Hex: Regulating Family After Marriage Equality, 49 U.C. DAVIS L. REV. 183, 228 (2015) [hereinafter Cahill, Oedipus Hex]. 3. See infra Part I.A. 4. See infra Part I.B. 5. For these proposed regulations of alternative reproduction, see infra Part I.C. Many of these proposals and their potentially burdensome effects on non-traditional procreators are also examined in Courtney Megan Cahill, Obergefell and the “New” Reproduction, MINN. L. REV. HEADNOTES (2016); Ca- 620 MINNESOTA LAW REVIEW [101:617 tion against same-sex couples for nearly fifty years, until the Supreme Court finally rejected it as unconstitutional in Obergefell v. Hodges.6 It touches everyone and disciplines many: men, whether gay or straight; women, whether straight or lesbian; heterosexual couples; same-sex couples; sperm do- nors, both anonymous and known; transgender and cisgender individuals; sexuals and asexuals.7 Reproductive binarism con- flicts with existing and emerging constitutional values like procreative intentionality and familial autonomy and is predicated on a cramped vision of sex and intimacy. Moreover, it is stub- born, persisting in many domains even as it is jettisoned in others, and enjoys nearly universal support, uniting critics of non-traditional families with those families’ allies. Conception “the old-fashioned way, through sexual intercourse” is just different from alternative reproduction, a traditionalist commen- tator argues.8 Sex and alternative insemination “are, in fact, different, and different enough to satisfy any level of constitutional scrutiny,”9 echoes a progressive family law scholar. This Article challenges reproductive binarism on factual and constitutional grounds and considers how the law might— and why it should—operationalize a unitary system of reproductive regulation based

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