Woman Sues FDA Over Sperm Donation Rules

True or False: In the United States, a couple who wants to have a baby must first go through expensive testing of the male partner’s sperm, in accordance with FDA regulations.

The answer is: It’s complicated.

If an adult woman is trying to get pregnant the old fashioned way, she’s free to procreate with whomever she likes (as long as her paramour is above the age of consent). But if a woman asks a male acquaintance to be a sperm donor, FDA rules stipulate that her chosen sperm donor must undergo a physical exam and testing within a week before the donation. The estimated cost of this mandatory procedure is $800; but because a woman may have to try several times before becoming pregnant, she may be shelling out far more than $800.

Is this fair?—or, perhaps more importantly, is it constitutional? One woman in California says it isn’t. “Jane Doe” is a gay woman in the Bay Area who wants to have a child with her female partner. The couple wants to avoid the hassle and costs of a sperm bank, and they’d like their child’s biological father to be a friend they trust. Because of FDA regulations, Jane Doe can’t go forward with the pregnancy without paying for donor testing—unless she has sexual relations with the male donor.

Ms. Doe has filed a lawsuit against the FDA alleging that the regulation of “private, uncompensated” sperm donation is unconstitutional. Her suit states that she

“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.”

Interestingly, as Fox News notes, Jane Doe’s suit may benefit from the Supreme Court’s Obamacare decision. Fox’s Judson Berger reports:

“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.

[…]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.