UCLA Journal of Gender and Law

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The Internet has changed the way people do many things: find love, buy clothing, plan a vacation, and, more recently, seek sperm donors.  Almost exclusively through an internet vetting system, the sperm donor and donor seeker may meet at a Starbucks, in a camper trailer, or in  the back of an SUV to conclude the transaction.  The donor provides his sample and the donor seeker attempts conception. This practice has resulted in the happy creation of many families.

While this spontaneous market has existed for only a short time, the FDA recently moved to assert its jurisdiction over it, creatively tagging one prolific free sperm donor as a “sperm manufacturer,” and threatening to apply to him the far more extensive and onerous regulations applicable to sperm banks.  He was ordered to cease manufacturing sperm due to a failure to comply with the FDA’s disease testing requirements.  In response, a woman wishing to use private sperm donation filed a lawsuit in the Northern District of California against the FDA.

The law (and culture perhaps) once again must adjust to innovation.  But should it?  This paper will discuss what private sperm donation is, why it is becoming more prevalent, the risks associated with obtaining sperm from a sperm bank versus through a private donor, whether the FDA can and should  regulate private donation, and ultimately, why a woman’s right to choose her sperm donor should not be regulated.

This essay offers a critique -- inspired by feminism(s) --  of Citizens United v Federal Election Commission, 558 U.S. 310 (2010), a case which ruled that restrictions on direct expenditures of funds from corporate treasuries to support or oppose candidates for political office were unconstitutional restrictions on corporations' rights of free speech.

In response, the essay proposes a two-pronged feminist attack against Citizens United.  The first prong is to acknowledge the dangers facing women and other disadvantaged groups which emerge due to corporate privatization of the public sphere and to argue, as an antidote, for a robustly construed public domain. Whereas early feminists identified as a threat to women the divide between public and private, Citizens United underscores a newer threat -- namely the elimination of that divide.  The second prong is to deploy feminism's well known rejection of abstraction in favour of context.  This approach helps demonstrate how Citizens United propels its pro-corporate outcome by erasing context and instead deploying a strategy of denying tremendously significant legal distinctions -- most crucially between living human beings and artificial legal entities.

The existing scholarship on abortion rights focuses mainly on what is wrong with the state of legislative or judicial provisions surrounding the right to choose.  In addition to highlighting a problem, this article proposes a solution.  It argues, in a call to action, that the undue burden standard should be consistently raised by advocates and addressed by courts.  Thus, it should run parallel to all other challenges.  This article provides a roadmap for advocates, both in text and in hypothetical application to a recent Fifth Circuit case, regarding how to raise the standard in full when dealing with informed consent provisions.  This article shows, by example, that a fuller application of the undue standard can and will change the outcome of cases dealing with pre-abortion ultrasound provisions and fetal pain laws.  The article is not overly optimistic about what this changed standard may mean for the sheer number of abortion laws proposed, but argues that more attention to all aspects of the standard is necessary for future success in challenging informed consent provisions.  My hope is that this piece will contribute to the conversation in the public interest field about taking risks in reproductive rights advocacy, and to the actions taken during the litigation of challenges to informed consent laws.