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.