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San Diego Law Review

Document Type

Comment

Abstract

The Commerce Clause is one of the strongest and most expansive powers granted to Congress under the U.S. Constitution.  While its strength has fluctuated throughout history, its power will undoubtedly be important in tackling modern problems, including regulating the Wild West of sperm donation.  The rapid expansion of the commercial sperm banking industry and the rise in the need for sperm donors have exposed significant regulatory gaps in the United States.  Although these groups support family formation for individuals facing infertility, same-sex couples, and single parents, federal oversight is largely limited when screening donors.  As a result, critical issues, including unlimited sperm donation, inadequate verification of donor medical histories, and donor anonymity, remain without a regulatory fix.  These shortcomings create risks for donor recipients and donor-conceived individuals, including accidental consanguinity, undisclosed genetic diseases, and asymmetrical information that impacts informed reproductive decision- making.

This Comment argues that Congress possesses the constitutional authority to establish a comprehensive national regulatory scheme governing the sperm donation process.  Drawing upon Supreme Court precedents interpreting the Commerce Clause, the Necessary and Proper Clause, and the Legislative Vesting Clause, this Comment demonstrates that the entire process of sperm donation is subject to federal regulation.  Because donor sperm, sperm donors, and sperm bank operations move through and substantially affect interstate commerce, Congress may impose uniform standards designed to protect donor recipients and donor-conceived individuals.  Not only is federal regulation constitutionally permissible, but it is also necessary to ensure that soon-to-be families have trust in the process while safeguarding the health and well-being of future generations.

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