Woman sues FDA for right to select sperm donor, bypass sperm bank

By Judson Berger     Published July 03, 2012


A California woman pursuing artificial insemination is suing the federal government for the right to choose how she’ll get the sperm.

The unusual case was filed Monday in U.S. District Court. On the heels of the Supreme Court decision upholding the federal health care overhaul, the plaintiff in this case is challenging another area of federal health care regulation.

At issue are Food and Drug Administration rules that set standards for sperm banks — like requiring tests for communicable diseases. But the woman in the California suit doesn’t want to go through a standard sperm bank or other clinic. The anonymous plaintiff instead, according to the suit, wants to use the sperm of someone she knows — at no cost — without going through all the federal regulatory rigmarole.

She and her lawyers call the FDA rules an unconstitutional violation of her rights — that is, her right to start a family with whomever she wants.

“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 whether they want to have a child together, then the FDA regulations should not apply,” Amber Abbasi , attorney in the case, told FoxNews.com.

Abbasi’s group Cause of Action filed the suit on the California woman’s behalf.

The plaintiff did not release her identity, but according to Abbasi her situation is as follows:

She’s in a relationship with another woman and would like to conceive a child. She does not want to go to a regulated sperm bank because she wants to know the biological father and wants the child to know the father as well — and she’s concerned about the cost of going through a sperm bank.

The argument may have gotten a boost with the high court ruling last week, which upheld the health care overhaul but at the same time affirmed limits on the Constitution’s so-called Commerce Clause.

“The Commerce Clause is not a blank check,” Abbasi said. Their suit claims, among other things, that the federal regulations on sperm donation overstep the Commerce Clause.

The FDA rules stem from a 1944 law passed by Congress allowing for regulations to prevent the spread of communicable diseases. The FDA later applied those regulations to sperm banks and donors, as part of the effort to prevent infection from a range of diseases.

Abbasi, in explaining her client’s concern, pointed to the FDA’s 2010 decision to order one California sperm donor to cease and desist over concerns he wasn’t following FDA standards.

Their current lawsuit questions the extent to which the rules have been applied, suggesting there’s a double standard.

The plaintiff “does not want to be forced to engage in sexual intercourse with a male partner to conceive a child, even though such a male partner would not be subject to FDA-required screening and testing and other FDA-mandated donor-eligibility requirements,” the suit says.

The plaintiff in the case wants the court to declare as unconstitutional any rule that would regulate “private, uncompensated” sperm donations.

A representative with the FDA did not return a request for comment on the case.