In today’s episode, UVA Law 3Ls Reidar Composano and Bryan Blaylock join me to continue our discussion with University of Chicago Law professor, Mary Anne Case, about her forthcoming paper, Donorsexuality. The f-bomb is dropped (but for reasons relevant to the paper) and I emphasize (again) that all this Con Law talk is not welcome on my podcast. No one listens to me.
Case litigated for Paul, Weiss, Rifkind, Wharton & Garrison and was professor of law and Class of 1966 Research Professor at the University of Virginia before joining the Chicago Law School faculty. Her scholarship has concentrated on the regulation of sex, gender, sexuality, religion, and family; and the early history of feminism.
Mary Anne Case faculty bio: https://www.law.uchicago.edu/faculty/case
[00:00] Mary Anne Case: Something, Kim, that you have written eloquently about, including in my favorite workshop at the University of Chicago Law School workshop on regulating family, sex and gender, which.
[00:12] Kim Krawiec: Is my favorite as well. Of course, it's the only one I went to, but yeah, but I enjoyed it.
[00:17] Mary Anne Case: When Kim presents it a paper on price fixing in the market for human eggs and it's antitrust implications. We commentary by my friend and colleague Frank Easterbrook, the judge and a leading antitrust expert. And I think the paper later became a case and the case reached a settlement, is that right?
[00:36] Kim Krawiec: It did. And they repealed those guidelines as part of the settlement. Yeah.
[00:40] Mary Anne Case: So part of what makes something commercial. So this gets to the back to the very beginning of the discussion, which is why are these women seeking it out medicalizing? Something commercializes, it makes it cost more, makes it more impersonal, makes it a market transaction whether or not the egg donors are supposed not to be interested in the market implications, but only the altruism.
[01:07] Kim Krawiec: Hey.
[01:08] Kim Krawiec: Hey, everybody.
[01:09] Kim Krawiec: Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to.
[01:13] Kim Krawiec: Sell but do anyway. I'm your host, Kim Krabbik. In today's episode UVA Law three LS, writer Compassano and Brian Bleche join me to continue our discussion with University of Chicago law professor Mary Ann Case about her forthcoming paper, donor Sexuality. The FWA has dropped again, but for reasons relevant to the paper and I once again emphasize that all this ConLaw talk is not welcome on my podcast. As usual, no one listens to me. Marianne Case, litigated for Paul Weiss, Rifkin, Wharton and Garrison and was a professor of law and class of 1966, research professor at the University of Virginia before joining the Chicago Law School faculty. Her scholarship has concentrated on the regulation of sex, gender, sexuality, religion and family, and the early history of feminism.
[02:15] Kim Krawiec: So we had a lot of discussion, Marianne, in class, about what it means to be I forget what the exact word is that the FDA uses. Is it sexually intimate practice and how we think about that and what sort of tests could or should be developed for that. I'm going to turn it over to Brian to lead us down that path.
[02:37] Bryan Blaylock: Hi, Mary Anne, one of the first things when reading the article jumped out is the lack of the definition of what is sexual intimacy. And so the first case that popped in my mind was Jacob Ellis v. Ohio, which is a case from 1964 where the court was grappling with how to define obscenity. One of the most well known quotes actually came from Justice Potter Stewart's Concurrence, stating that the constitution protected all obscenity except hardcore pornography. And then when it came to being able to define obscenity, he says, I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligently doing so, but I know it when I see it. And the motion picture involved in this case is not that. And so I think there are some parallels here in the fact that there is no agreed upon definition by the FDA of what is actually involved in defining the term sexual intimacy. So it seems like that would seem to create a lack of consistency among the different lower courts grappling with this in their own jurisprudence. And that without the predictability from case to case as far as outcomes are concerned, we could see a bunch of different types of justices, much like justice Stewart, basing their decisions on knowing it based on what they see without any clear definition. That's leading me to a bunch of different questions. But I'm just going to kind of just like, break this down in a really quick, succinct question. You had said that the FDA regulations don't define sexual intimacy, but they cannot accept an expanded definition of the term sexually intimate partner. So that seems to suggest that while they can't define what sexual intimacy is, they can define what a sexually intimate partner is. Is that the case in a sense that then an agency representative, an agency officer, has the freedom to use their own discretion in determining whether the act of issue is or is not considered a sexually intimate act?
[04:51] Mary Anne Case: First, there has not been a whole line of cases. There have not been a whole line of prosecution. Arson's case is the only one so far I have found. Reported decision on Nagal was investigated, I believe, not by the FDA, but by the New York authorities, and has represented that the New York authorities have accepted his explanation. And I think come back to the FDA's language. I think every one of those words sexually intimate partner can be seen to be relevant and to be doing some work. As always in the law, what a term means depends on what the context is in which it's being used. So one of the things I do in the paper is to say, why does the FDA care about whether this is a sexually intimate partner? Why does the FDA carve out a sexually intimate partner for different treatment? And I say that there are two reasons that are not in tension with one another, but that are on very different, you know, levels in the law. I think the most important reason is that the FDA is principally concerned with disease prevention, and the diseases it is very narrowly focused on are sexually transmitted diseases. And again, the regulations are put everything in the context of AIDS, right? Think about the other transmissions of bodily fluids the FDA regulates and the way in which AIDS has affected that. If you are following gay rights issues, you will see that there are gay men who have been saying for a generation, do not categorically exclude from the ability to donate something like blood, people who have engaged in sex with other men. But that's what the FDA, when the FDA wrote these regs. I am convinced I haven't done the legislative history or the regulatory history, but I'm convinced that what the FDA was obsessed with is minimizing the transmission of sexually transmitted diseases from a donor to a recipient. And therefore the FDA might have said to itself, thinking about sex as the exchange of bodily fluids, or at least the close proximity of bodies in a way in which bodily fluids, if not deliberately exchanged through, for example, unprotected penal vaginal sex, could be exchanged. I think what they're saying is if we're trying to minimize risk exempting sexually intimate partners, probably not exempting sexually intimate partners doesn't increase the risk that much, because if they're sexually intimate, they're already exposed to each other's bodily fluids. So our whole purpose in regulating is not served. And then on the other side, why we should exempt sexually intimate partners is because of the whole series of cases that I describe as the right of the book and the whole series of cases that are about family formation, right, intimate and partner are things that the constitutional law has protected, is protected sexual intimacy. And it is protected intimacy of other kinds. Partnership intimacy under the constitution. So if the FDA is saying, who are we going to exempt? It makes sense for them to say we're going to exempt people who would not necessarily present risks if we did not exempt them because they're already potentially exchanged with bodily fluids and have a constitutional basis for saying we should leave them alone to engage in their sexually intimate partnership, including to the point of donation of sperm for reproductive purposes. Because, again, the Constitution has protected sex, intimacy and partnership. These are the three of them put together.
[09:28] Kim Krawiec: So Brian has a follow up. Before we do that, I was just interested, Mary Anne, and how we got to this seemingly sort of weird outcome from the FDA. How did arsenal come to their attention? Was it he's high volume and he was getting media attention, or did it go the other way that he got media attention?
[09:51] Mary Anne Case: Because they I honestly don't know how he came to the attention of the FDA.
[09:56] Kim Krawiec: Got it. I just wondered why they targeted him and how they sort of he certainly.
[10:00] Mary Anne Case: Got a lot more media attention and welcomed it once the FDA came after him, because he and his lawyer and one of his recipients were prepared to make an issue of this. But I think initial media attention might have been the genesis, but I honestly don't know.
[10:22] Kim Krawiec: Got it.
[10:23] Mary Anne Case: As we are thinking about regulation going into the future, I think it would be much more valuable for the FDA instead of worrying about definitions for sexually intimate partners. If it can, and I'm not an expert on the FDA. I turn to Kim perhaps to cease the obsessive focus on sexually transmitted diseases and start worrying about things that are of far greater concern with respect to sperm donation, which is diseases that are transmissible through sperm, not through the sperm is bodily fluid, but sperm is genetic material. And one reason why people may not want to go to a sperm bag, in addition to the expense and the lack of personal information, is the lack of scientific information, right? I mean, sperm banks have not historically engaged in much what I would call due diligence in terms of the health histories and the potential reproductive risks from the sperm that they transmit. Not only are there horror stories galore about sperm banks vastly exceeding the number of offspring they promised, both the donor and the recipient would come from the sperm, so that hundreds of children have come from some donors. But also, the banks have continued to provide sperm from donors who produce children with very serious heritable diseases without checking to see if that has happened, and then embargoing the sperm and informing the people who have already received it. That, you know, sorry, but we gave you sperm that is going to make your child have a very serious genetically transmitted disease that's going to cut life short, compromise life, all of those sorts of things. So I don't know enough about the scope of authority of the SDA, but if I were Brian counseling more legislation and regulation, whether it takes Congress or whether it takes the FDA, I would be focusing again less on making more precise the regulations designed to prevent sexually transmitted diseases and instead focus on how we can regulate the actual content of the sperm.
[13:15] Kim Krawiec: Seems to me that if the FDA doesn't do what you suggest, and you are correct that this is a constitutional issue that courts will have to grapple with the question then of what is a sexually intimate partner or no? Are we misreading you? Well, in other words, if they don't do that, and you're right in your constitutional analysis, then at least for some subset of people who are able to make this claim, then the court is going to have to address this question.
[13:42] Mary Anne Case: This is the real difficulty of answering your reasonable questions in the immediate aftermath of Dobs. The answer I would have given before jobs is totally irrelevant, I think, in this new environment, because it depends on their being a settled lawyer. Protecting sexual intimacy on the one hand, by which sometimes the court means nothing more intimate than simply fucking. This piece I wrote, the Couples and Coupling piece in the UBL deal, deals with that deals with the difference between that some courts make between sexual intimacy and intimate sexual relations. And sometimes all they need by sexual intimacy is your having sex, and sometimes they mean bisexual intimacy, something that keys more into kind of mention the Constitution, again, the constitutional category of intimate association, which can be seen to be just sexual association, but very often means something more than that. If I were Arsenal's lawyer, I mean, again, arson of lawyer got nowhere with this. The FDA basically said, we're not interested in any evidence you have to offer, which again, to me signals that what the FDA was interested in is sexually transmitted diseases. And there was enough information available about Arsenal to know that nothing he was doing would involve physical contact.
[15:25] Kim Krawiec: The next set of questions we had sort of all revolve around a theme of whether and how the welfare of offspring and or public health concerns factor into this analysis and how courts or the FDA should approach it. So let me start with writer thank.
[15:44] Reidar Composano: You for being here, Mary Anne. So the article pays a lot of attention to the motivations and characteristics of donors and their recipients, and it also discusses the benefits of certain arrangements. But something that I thought was kind of missing was the eventual offspring. I can't mention that you have other writing on this, but I wanted to take some time to talk about it now because I have a personal connection. I'm a product of a sperm donor. And some of the themes that were discussed in your article are relevant to my life. I was primarily raised by a single mom, my donor dad's game that led someone into his motivations. From what he's told me, however, there just wasn't much discussion of me and people like me. Now, I'm curious, how did the children of sperm and egg donors fit into your thoughts generally about these issues and then also the legal issues discussed in the article?
[16:38] Mary Anne Case: So again, this article, the version you have was under very stringent word on that. So it doesn't just and again, my questions in the article are in very large part comparative questions, right? Let us consider these high volume non commercial donors of fresh sperm and compare them to lots of other kinds of producers of sperm who use that sperm deliberately or not to produce children. I think the issues you raise are enormously important. But one of the things I want to try and think through is how different are the concerns of children depending on whether their donor is any one of them that I mentioned, it would matter a lot if their donor is Joe donor or arrival'or if their donor is from a sperm bank. And if the sperm bank is that a sperm bank that preserves anonymity or is it a sperm bank that provides information that gets so when I'm eager, as you all know, to hear your thoughts on comparators because I end up. The paper by saying, if there's going to be continuing constitutional protection for these folks is more likely to be a question of equal protection than of substantive due process. So I can't speak to your any other donor child's reaction, but the legal questions as well as some of the nonlegal sociological and psychological policy questions that arise from me is if you're single mother who I take it as a single mother by choice.
[19:00] Reidar Composano: No, in fact, she wasn't a single mother when the donation happened. But it just was relevant because for the majority of my life that was the case.
[19:13] Mary Anne Case: So there are all kinds of ways that they can choose to find sperm, including a onenight stand with a stranger, including a known donor who complies with the local state law and conveys the firm through a doctor. And by the way, this reminds me, another reason, given why people prefer the people who do preferred donors like Arsenal and Nangle, is the nonmedicalisation of the process. Even apart from the money and the information, they say, I don't have to go to a doctor's office to do something personal. I can do this directly face to face with someone that I see, and the medical establishment is not involved. So again, one of the reasons people like Nagle is that he will be available to the children. They can have some kind of relationship with them, and if that's what they want, they can have. And if that's not what they want, then he will not oppose it. And he's, in a sense, a known quantity. The policy issues of what's best for the children are extraordinarily complicated and individualized. But my question in this paper is to ask, and I'll ask you, writer in particular, but everyone else in general, is it the case that these issues are black and white, different, and if so, black and white worse? For people whose donor is one of these high volume, non commercial donors of fresh sperm and people whose donor is picked any other way by which donors provide sperm to people who wish to become pregnant with that sperm.
[21:39] Kim Krawiec: Marianne just invited us to give her some thoughts on whether the offspring are worse off in some meaningful way.
[21:47] Mary Anne Case: Worse off? Unfortunately, I shouldn't have used that front metaphor, but clear distinctions as opposed to spectrum all around, various considerations in each case, but not one is categorically worse than the other, so that one should be prohibited and the other encouraged, tolerated, regulated. What happened?
[22:17] Kim Krawiec: So, Ryder, what do you think?
[22:19] Reidar Composano: Well, I think earlier you talked about potential regulation that looked at genetics rather than sexually transmitted diseases. And I think in that alternative reality, I would prefer the offspring to have some sort of genetics check done and to have that be regulated and required before I'm just a byproduct of an unregulated interaction. Like I said, it's not a transaction because no money is exchanged. I think under the current framework where the primary FDA regulation is looking at sexually transmitted diseases, it's less clear for me. You highlighted some of the positives of the cases that you outlined in your article, and I'm not necessarily sure on that. But I do think one thing for sure is that if there was that genetic testing, that would be a heavy factor in favor of regulated donations.
[23:19] Mary Anne Case: So let me say a couple of things. First of all, I hope mean to suggest that the FDA should ignore sexually transmitted diseases. I just think it should not be as obsessively and narrowly focused only on them, which I certainly think it was at the time of the Arsenal case for again, understandable historical reasons. And possibly and this is where my expertise runs out because of the limits of their mandate. But if I were, as Brian was inviting me to, thinking about how to make these regulations better, I would expand them to consider genetics if I could and do what it takes to make that happen, whether it's through congressional legislation or FDA regulation. But I will also say this gets to my UVA. Right. So one of the things I learned from Bob Scott, the dean of UVA Law School when I was there is.
[24:21] Kim Krawiec: Scott Commons guys, what I'm telling them, that it's Scott Commons because that's their exposure probably to Bob. Yeah.
[24:31] Mary Anne Case: So is the as compared to what question. So you are concerned as the product of a donation to get genetic information and to not have and if possible, have avoided the risk of being the product of a genetic donation that would lead you to problems? I hazard the gas that almost everyone else on the screen, certainly almost everyone else in the world is the product of a reproductive activity that was not genetically monitored in advance. The exceptions are people, I think, from a family history of knowing they've already had a genetic problem, that they then engage in testing. Certainly anyone who is the unplanned product of one night stand is highly unlikely to have genetic testing done before their conception. And one of the questions, one of the big picture questions in the aftermath adopts I have for this paper is what new constitutional possibilities will there be and what is the likelihood that they will be seized? What is the likelihood that they should be seized to do something that has not been done lately at all in American law, which is to seek to prevent people from reproducing because they are in one way or another unfit? Right. So as I discussed briefly in the paper, even in the middle of the 20th century, when you did have to get tested in order to marry, that testing was mostly focused on the narrow disease. And again, that might have been having to do with the limits of testing. But we can certainly imagine a scheme in which before reproducing or before marrying or at some point people would have to undergo genetic testing. It has been quite unthinkable in the United States to get a license to reproduce bart v. Bell, the case involving the sterilization of an allegedly mentally handicapped woman, turns out she's probably not mentally handicapped, but that's another story. That case is in disfavor but has never been formally overruled. There are cases involving less than fully voluntarily sterilization of prisoners. I'm not talking about that. When I ask you to imagine the opposite extreme from the current environment, I'm asking, can we imagine a world in which, for the reasons rider you mentioned, we are concerned about anonymous donors, we become concerned about everyone in their ability to reproduce. Do we want no longer to take the risk that people who are going to produce offspring that will suffer from genetic diseases have those offspring now, again, after Dobs, things become a lot more complicated because, on the one hand, the protection for the decision to bear or began a child is imperiled. On the other hand, the choices about what to do if a child is begotten that you don't want to have born are also more limited in other legal system. The Chinese system with its one child policy, for example, you can imagine saying, okay, come in and work whatever week of pregnancy, and we'll do the tests. And if we think your kid is not physically as healthy as it should be, out with it. Abortion, you know, however late in the pregnancy is the first time we can do the test that has, up to now being thought of as horribly unamerican. And if but if Dobs really means what it says, and this is all now up to the legislature, dobbs did not say fetuses are human life and protectable as human life. It intimated as much, but it didn't hold as much. What it hold was legislature can do whatever it likes. And as people like Scalia realized, the legislature can do whatever it likes to mandate abortion just as well as mandate no regulation of abortion.
[29:35] Kim Krawiec: So, Marianne, if I am to sort of put this into a visual, which, as you know, is how I think better, what I hear you saying is that if we have all of the concerns laid out and then we have the choices of sperm bank, arsenal and Nigel or other methods. There's no concern where the Arsenal and Nagel box is the only one that's not checked.
[30:06] Mary Anne Case: I'm interested in hearing about examples. I have not been able to think of any. What you are engaging in is exactly the process I have tried to engage in, not visually, but more in terms of lists. What are the considerations here? Considerations about unwanted incest, considerations about physical health of the resulting offspring, considerations about psychological health of the resulting offspring, and on and on and on. I think you have put it very well. I can't think of an instance where the arsenal and naval boxes are the only ones left unchecked. Whatever concerns they raise are raised elsewhere, sometimes to at least the same extent, sometimes to a far greater extent.
[30:58] Kim Krawiec: The set of questions we had on agreements not to seek support generated quite a bit of discussion. Caroline, let's start with you on this one.
[31:06] Caroline Gozigian: Hi, Mary Anne.
[31:07] Mary Anne Case: So I'm curious about the agreements, like those between Nagal and some of the mothers that you discussed are unenforceable. Why would Nagle or someone in his position have an agreement in place if he's aware they are unenforceable as seen through several actions to bring child support against him? Well, I mean, I would ask you all to consider how often in your own lives you make agreements that you either know or unenforceable or really would never go into court to enforce. And again, on the theme of putting in plugs for my own work, I've written a piece called Enforcing Bargains in an Ongoing Marriage in which one of the things I argue is that the assumption of UFO that you cannot enforce bargains in an ongoing marriage, first of all, is not well justified by the cases cited in support of it. That is, I don't think the case hold this, but also should not be the law, right? If you really want to enforce in an ongoing relationship, you should be able to. But the point is that even knowing that you cannot, most married couples reach agreements with one another. They don't necessarily reduce those agreements to prenups, let alone imagine those prenups are going to be enforceable, but they discuss and agree. If you've ever had a roommate, I don't know that you thought that your agreement with your roommate about who does the dishes was enforceable, or even if you thought it was enforceable that you would ever go to court to enforce it. But that doesn't mean that when you are engaging in an intimate activity, whether that's rooming with someone or having a child with them, there isn't a good reason to discuss things and set out your mutual understanding. And have faith that you are dealing with someone of good faith who may not be able to fulfill the agreement to the full letter, but at least it's not coming in in bad space with an intent of screwing you over.
[33:18] Kim Krawiec: So I'm going to turn to Mary who has a question about specifically the use of the word fuck.
[33:24] Mary Anne Case: Yes.
[33:25] Mary Talkington: Thank you so much for joining us. Mary Anne. I was curious, so you got the cases you discuss the cases supporting the right to fuck compared to those supporting the right to procreate. And so I'm curious about the choice of language there. Like, was using the word fuck just meant to be an attention grabber or was there actually like another purpose there? Do you think it articulates something that just saying the right to have sex doesn't really capture?
[33:55] Mary Anne Case: We have seen the right to have sex. Have sex is an undefined term. Nobody knows what it means. Fuck is an ordinary Anglo Saxon word that, even though we may use it metaphorically in context, it's very different from its literal meaning, has more than half sex does a generally recognized legal meaning, right. It's got at least the core with some fringe elements. And part of what I was doing was deliberately playing with Scalia's notion that it's the most narrowly framed version of the right that is all that is protected. I am delighted to forgo the use of the word fuck. I am not using it for its shock value. I have invited everyone, for example, legal forum editors who initially were also not happy with my choice of words to find me another word, right? If you find me another word and can demonstrate to me that that word is doing the work that fuck is doing. In other words, that it's precisely identifying with a minimum amount of possibility for confusion or ambiguity. The thing that I claim that the cases, the line of cases from Griswold to Eisenstadt, to carry the population services to Lawrence are protecting, and then including, much more unusually, Stanley versus Georgia, the obscenity case, where the court holds that even though you can't necessarily acquire obscenity legally, if you've got it in the privacy of your home, you can use it for its intended purpose. Which, you know, I have to say, I think the court understands its intended purposes. Masturbation if it's intended purposes with the generation of ideas, even about sex, then it wouldn't be obscene that's the definition of obscenity is that it doesn't generate ideas. So the right to fuck seems to me to be the narrowest thing that all of these cases protect. Even terms of art like academy are famously ambiguous and contested and diversely defined in different circumstances. Again, I invite all of you, I invite any listeners of these podcasts to hear it in the very near future before the article goes to press, to invite to give me an alternative term that does the same work in the same way. And I don't mean the work of shocking people, although I will confess to a certain perverse enjoyment that as I respond to Scalia, who says narrowly defined, this is how I narrowly define it.
[37:00] Kim Krawiec: Well, just to point out, Mary is smarter than I am, because when she brought this up, I said, it's fine just for the shock value. And Mary was like, no, I think that she might be trying to convey a different meaning than what is available in other terms. And after I thought about I was like, oh, you're probably right. You know, that didn't occur to me at first.
[37:20] Mary Anne Case: So definitely not the shock value.
[37:23] Kim Krawiec: Just a plug for Mary's intelligence.
[37:26] Mary Anne Case: Thank you for Mary, in addition to being smart enough to realize that, generous enough to give me the benefit of the gouge.
[37:35] Kim Krawiec: Are you saying I'm a generous Mary and I'm just not imaginative?
[37:42] Mary Anne Case: I don't market myself well enough? Maybe you think it's generous of me to stand going for the shop value. Fortunately not. I'm being somewhat sedantic.
[37:57] Kim Krawiec: Okay, so as you mentioned in your introduction to us, Mary Anne, these are international transactions, at least as both Nagle and. R in what's his name again? Arsenal.
[38:09] Mary Anne Case: Arsenal, as far as we know, is not engaged in any international domestic joe Donor travels around the world. Okay, got it. So does Arsenal.
[38:27] Kim Krawiec: Okay. So that prompted a couple of questions I'm going to turn to Rahima to ask about that.
[38:34] Mary Talkington: Hi, Maryanne. So, as we all know, the US. Is one of the only developed nations in the world to have no regulations on sperm donation. And so I was just wondering, in your research, did you come across any regulations in other countries that, you know, could serve as models or maybe shouldn't serve as models for the future US regulation? And have they been effective in kind of addressing the concerns that we have over unchecked firm donation?
[39:02] Mary Anne Case: So I would say the answer to your final question, have they been effective at addressing the concerns? Seems pretty clearly to be no. Because of the heavy regulation of sperm donation in other countries, a market for unregulated sperm donation has developed in those countries. If you go to YouTube and Google these issues for the UK, you see that there are a whole series of videos that follow. People like the people were also high volume, non commercial donors of freshwater. I don't want to say people like Arsenal and Nagel or Cho Donor, because each of those is different. But there is a market for the kind of services that these three men, US males that I'm talking about provide in the UK that the media reports suggest is expanded rather than controlled by the much more stringent regulation of sperm donation in the UK. There are similar stories about Belgium and the Netherlands, and there are stories about there's some Australian TV stories because Joe Donor shows up in Australia. I think the short answer to the first part of your question, which is, you know, what do other countries do and is it any better? Is in part that it is too soon to tell, because a lot of the other countries have either altered their regulation either to make it more stringent along some dimensions or less stringent along other dimensions in enough of the recent past so that there aren't yet people like Ryder. That is to say, people who were conceived in a regulatory regime that are now adults. Right? So among the changes is some countries have gone to allowing anonymous sperm donation in the first place, allowing it to be made available to people who are not heterosexual couples. In the second place, there have been regulations that have reduced or eliminated payment. There are regulations that have insisted on non anonymity. So if you sign up, you have to agree not to be anonymous. And the regulations vary as to what level of contact, when the contact as I said earlier, I don't know of any that I think I don't know of any. Most of the ones that I know of are involved. Consent to be made known to the child once the child reaches 18. And some involve consent to disclose certain personal information, most of it health information, but, you know, so there are regulations along the lines of disclosure, regulations along the lines of health. There are regulations on how many times you can donate and produce a child. And part of the problem, not just in the US. But in lots of other places, canada is one in which there have been some notorious cases is that even though any individual sperm bank might be subject to those regulations, there hasn't up to now been good control of men moving from bank to bank. Even if the sperm banks did do what some of them publicly commit to doing, Saying in Australia, for example, there's regulations that limit the number of children. And in other jurisdictions as well, the attempt is to limit the number of children within a specific geographic area. Again for the accidental incest issues, but also the issue that against everyone's hopes and desires, someone with genetic problems produces offspring better that they only have five or ten rather than 50 or 100, right? So all of these dimensions are dimensions that are being regulated publicity, information, who the recipients can be at payment.
[43:45] Kim Krawiec: And so, Marianne, if I'm hearing you correctly, then the unregulated sperm donor is more of a prominent feature in many other countries than in the US precisely because of their regulation.
[43:59] Mary Anne Case: So I don't know, I'm not going to be comparative, I'm not going to say more of a permanent future. And again, this is not scientific studies. My tooling around the internet, seeing what's getting internet attention, it's a working hypothesis. My working hypothesis is simply that regulation has not proven to be the solution. I mean, it's not that different from what people are saying about abortion, right? The number of abortions is not necessarily going to be a direct factor of whether it's legal or not. And similarly here it's a bit hydraulic, right? Extensive regulation along some dimensions. That regulation is not facilitative, but is going to stop transaction, stop people from doing what they want, then hydraulically, they will shift to other avenues that are not regulated to try and do what they wanted to do all along. One other set of international regulations I should have mentioned, they didn't because they're in the paper, but I realized that the listeners in the podcast probably had them in the paper is the series of regulations in Israel that have stopped arrival from donating. And those regulations basically say you can be an anonymous donor, but if you are not an anonymous donor, you have to be a father to the child. And what it means to be a father to the child is a bit of as vague a term in law as being a sexually intimate partner. But what they have held is that Ariannegel does not intend to be, for the purposes of Israeli law, a father to the children, even though he has been willing to do with his historically children what he's been willing to do with his US children, which is to be known to them, to be involved in their lives as much as the mother's wish and his many other offspring and busy schedule and resonance not in Israel will allow.
[46:01] Kim Krawiec: We have some questions about the comparators and I know that this is something that you're sort of most interested in talking about, Marianne, because you're still pursuing it for another paper. So Ryan, I'm going to go to you on your comparators question.
[46:19] Ryan Fitzgerald: Yeah. So the article mentioned at one point that basically to delve into all the different comparators would require like a much longer chapter. And so I'm thinking what would be, I guess, the easiest of potentially the ones you listed or just one that comes to mind? What would be the easiest comparator that could potentially ground an EPC claim and what might be more difficult to prove? I haven't gone into the comparison of comparison. I don't have a hierarchy. Here's the easiest, here's the most difficult. But I'll give some examples that I don't think are in the paper. Remind me if they are already or not. There is, for example, a Turkish married couple that has commissioned 25 almost simultaneously born surrogate babies. They're rich. The egg and sperm comes from the husband and wife. But the egg and sperm fertilized were implanted in each of 25 different women, or maybe not quite 25, but several dozen women. And now this Turkish couple has a bunch of toddlers. They can afford them. So another example is the optimum right who engaged in massive reproduction, had eight children simultaneously and those were not the only children she had, but she was comparatively impoverished. Is the difference that you should be allowed to do anything that you can afford to do? Is the difference that if you are married it matters. And this gets to what's left of modern substance due process. In a world where the judges are social conservatives now, they're also Catholics, so they think the new reproductive technologies, if they follow the Vatican line, are mortal sins. A little known fact that in my sideline as a Catholic theologian, I am pleased to share with you is that the Catholic Church is as opposed to artificial means of conception as it is to artificial means of contraception. So no abortion, no contraception, but also no initial fertilization. There is even an opinion from the congregation of the doctrines of the State, previously known as the Inquisition that says that even a husband's masturbation for the provision of sperm to be tested by a doctor so that he can facilitate the reproduction of children with his wife naturally, that is to say, through future unprotected bachelor intercourse. Even that the Catholic Church doesn't approve of. It certainly doesn't approve of artificial insemination, even by a husband of the exit of his own life.
[49:24] Kim Krawiec: OK, that's interesting because I had assumed that the hostility of the Church to fertility treatments and reproductive technologies stemmed from the possibility of embryo destruction during so many of the procedures. But clearly that is not the case. That's also the case, but that's not.
[49:43] Mary Anne Case: The only yeah, so one of the for some people, but not to me, puzzling statistics is that Catholic women in the United States have abortion at the same rate as other women. I think one thing that helps explain that is that the better Catholic you are in terms of the more informed and the more devout, the more likely you are to need an abortion. Because you will say to yourself, if I engage in contraception, I am sinning every time. If I roll the dice, I may never sin at all if I'm adjusting sex with my husband, and then if I accidentally get pregnant, the abortion is one sin. Now, since the time the Catholic Church formulated its doctrine of contraception in the second half of the 20th century and the present, the Catholic Church has atmospherically come down a lot more harshly on fortune than contraception. But technically, theologically, it's the same problem.
[50:50] Kim Krawiec: I know about as much about religion as I do about con law. Marianne so I'll just leave it there.
[50:56] Mary Anne Case: But to get different taboo trades, the taboo trade of teachers in Catholic schools, what are they trading away in exchange for the job? In a world in which the Supreme Court has held that there is a ministerial exception that pretty much exempts most teachers in most religious schools from all protections under all of the employment discrimination laws, and there have been teachers who have been fired for making it publicly known because that's what the Church cares about. It's called a doctrine of scandal. And yes, I have written about this too, making it publicly known that they have engaged in in vitro fertilization using their egg and their husband sperm. They've lost their jobs.
[51:49] Marley Peters: Marley yes. High thank you. I was just wondering if we could take the concept outside of just like, a sperm donor, like labeling themselves as a sperm donor, but also to people. What would the legal implications be for people who, you know, might not actually have the language of, like, being a donor sexual, or, you know, maybe have a different, like, philosophy regarding, like, childbearing or anything like that. But I'm specifically thinking of, like, Nick Cannon, who has so many children with different women and how would that affect, like, an everyday person who doesn't have this big philosophy behind it, but kind of, like, I can't help but see, like, the connection because I also think Nick Cannon is, like, a celebrity example. But, like, there are plenty of people out in the world who have children with a bunch of different people. Maybe they don't necessarily show up as a parent or in different ways like that. And so what would the legal implications be outside of, like, the scope of somebody who, like, willingly uses the language that, like you discussed in an article.
[53:02] Mary Anne Case: So this is exactly the sort of comparators that I am interested in, among others. Because it seems to me again, that the subjects of my paper I won't keep repeating high volume, non commercial donors of fresh sperm, which is my technical way of describing them, are doing something that is not categorically different from men who sleep around and have unprotected sex. Like the man who may well be our next senator from Georgia. Right? And you raised one issue right. You mentioned the account, and I used the example of the Turkish billionaire. Does it matter if you have the money to support these children? Does it matter if you actually support these children? Does it matter if you conceive them intentionally or not? And which way does it cut if you conceive them intentionally versus conceiving them unintentionally? And again, it seems to me after dobbs the ways in which I would answer the comparator questions before jobs are not the way I would answer them today. And I'm really sort of at a loss, the kind of loss that I think most professors of Khan are as to working out exactly what the implications again, the ordinary doctrinal implications, no policy on my part. Just connect the dots, doctrinals. And what does this mean for what used to be settled law? Settled law is that people like Nick Cannon could fornicate that's Eisenstad, right? And Lawrence and then might be held liable for child support, but could be excluded from participation in their children's lives if that's what the mother wanted and the father did not see the opportunity to become involved in the child's life when the child first came into being or shortly thereafter. That's the whole series of cases involving nonmarital followers.
[55:17] Kim Krawiec: We have a couple of questions relating to the Constitution, which I don't encourage, but I don't forbid it either. Bridget, I'll let you pick. You actually had two questions on the constitutional aspects. One regarding sort of the probability of contraction as opposed to expansion, and one involving the Scalia quote and whether this is really the narrowest of the I'll let you decide which one you want to ask or Mary Ann can decide.
[55:51] Mary Anne Case: If you're in different I address the first of them. I'm eager to hear more about the second of them. The first of them, basically, if I recall correctly from the list, was if I'm talking about what the equal protection implications are going to be, starting with Skinner in the new afternob's world. And I say here's the thing. The thing about equal protection is you can ratchet up or ratchet down. If the court finds that there is an equal protection violation because some people are privileged and others punished or vice versa, then the two ways that that can generally be solved is by giving everyone a better deal or everyone the worst deal, depending on which side of the equal protection calculus they're on. And the question was, are there examples in the case law of the result being that some people lost rights rather than some people gained rights? And I almost put this into and it's a text directly on what I just said about nonmarital fathers. They are nonmarital father cases. There's a non marital father case that has resulted in exactly this and it's, I think, the best example for it. So I'm sorry, Kim, this is going to take me back to Kano. There are a series of cases starting before the turn of the millennium involving the question of the birthright citizenship rights of children, nonmarital children whose unmarried parents consist of one US. Citizen and one non us. Citizen and for complicated legal historical reasons having to do with the treatment of the citizenship of women in the 19th and 20th centuries, the very complicated laws about who gets to be a citizen. If your parents are married again, can you, like, charge, your parents are married, your parents are not married. Your parents are citizens. Your parents are not citizens. One of your parents is a citizen. Is that your father or is that your mother? For the longest time, for reasons having to do with not wanting to leave children stateless, you were at times better off if your nonmarital citizen parent was your mother than your father. And the Court ducks the question of what to do with this under its ordinary sex discrimination law, about which I also have a paper called the Very Stereotype, the Locked EMS in the Cornell Law Review. But the court docked the court basically was begging Congress to solve the problem for them because if you solved the equal protection problem, you were at risk of putting nonmarital children categorically in a better situation than marital children, which clearly wouldn't have been Congress's intent. There are four cases before the Court finally bit the bullet and bit the bullet and contracted writes it said, we believe in our sex discrimination jurisprudence. So this kid whose nonmarital citizen parent was his father shouldn't be put in a worse position than had his nonmarital citizen parent in his mother. But we, the Court cannot expand citizenship rights. Those are within the purview of Congress. So bad news for people who are counting on their mother to claim citizenship. They're going to have their rights restricted going forward unless Congress fixes this to what? The rights previously available to children who are the product of nonmarital citizen fathers. This had to do with connection to the United States. This is a father who fathered a child as a teenager and therefore simply, literally could not have the length of connection to the US. That was required of fathers because he wasn't alive long enough. So that's an instance where the citizenship rights of some children, of citizen mothers have been restricted.
[01:00:26] Kim Krawiec: Okay, so I think we've got time, maybe for one more question. McKenna, I'm going to invite you to ask about your polymarriage question, in part because this is a topic that Marianne has written about. Marianne, this is a chance to plug more of your other papers, I think.
[01:00:42] Mary Anne Case: Okay.
[01:00:42] Kim Krawiec: Go ahead, McKenna.
[01:00:43] Makenna Cherry: Hi there. It was so great to hear you speak today, and I really loved in your paper that you mentioned polyamory a lot and specifically the dissenters and how you I think you correctly stated that people who are polyamorous can use Kennedy's opinion to claim legal recognition for marriage. I actually did this for Moot Court in college years ago. And during our Moot Court, we won it advocating for a threple to be able to marry a loving thru. And we actually used a quote from Scalia's Descent. I believe in Lawrence being like, oh, well, if we pass this, then what's the difference between this and polyamory? And so I really liked that you brought that up and also your arguments about equal protection and specifically religion. So I just wanted to know, do you think, despite your grounded fears about the unraveling of the Griswold line of cases, that polymarriage could still be argued before the court using a religious or other equal protection argument like you used with the example of Trent Arsenal? And is this still possibility post jobs?
[01:01:52] Mary Anne Case: Okay, so this allows me to plug a whole lot of my work rather more than I think Kim might have had in mind. So, first of all, I would distinguish between polyamory and polygamy. Polygamy meaning multiple spouses as opposed to multiple I'll use the term sexually intimate partners. Right? Multiple spouses are something different. And what Kim is imagining that I'm going to be plugging is the following. This work that I referenced earlier that I began with Paul Mahoney of UVA law on comparisons between the role of marriage and business corporations. I'm sorry, the role of law in business corporations and marriage. I apply the tools of law and economics to this. My general line on this is I teach at the University of Chicago, and I'm contractually obligated to use the word efficiency once in every talk I give. Thank you for giving me the opportunity to fulfill my obligation and use the word efficiency. My own view has been that the reasons why the court why the state, not the court, remains involved in marriage and should remain involved in marriage and he must remain involved in marriage have little to do with morality or the best form of relationships, has everything to do with efficiency. Marriage is an off the rack role that allows two people to point over at each other as the default person for any number of things, who inherits, who decides, et cetera, et cetera. So the classic example that the gay couples use to great advantage is one of you is in the hospital. And the question is, do we take all the Roth measures do we pull the plug? Who as a default matter besides, now it's only as a default matter because you can appoint your sister the doctor as your health care proxy, your brother the lawyer as the holder of the power of attorney, etc. On. But as a default matter, people usually pick their spouses. My argument is that means that two is the efficient number for spouses and for the state to provide an off the rack rule and without any changes really necessary in the law, minimal legislative changes. You can include same sex couples, you can include interracial couples, you can include any kind of couple, but only if there's only two of you because you're pointing over at each other. If there are three of you or more, they're already in the realm of contract and not really in the simple, easy form of status because what if one of the two spouses at the bedside does all the rope measures and the other one says pull the plug? What do you do? Right. So first of all, an awful lot more drafting. What has to be done to make marriage available to more than two people parenthood is a different issue. I'm now talking about relationships between adults and I haven't seen any workable form of that drafting that would also comply with modern sex discrimination. All of the forms of polygamy legally recognized anywhere in the world that I know of are asymmetrical involving typically a husband with multiple wives. This court could overturn all of modern constitutional sex discrimination law and then pulling me with a patriarchal ban and a bunch of subordinate wives would once again be open for legislative possibility. But until it does that polygamy is going to be harder to regulate. So recognition of polygamy in law, the way marriage is recognized in law as a status that comes with recognized benefits and recognized legal consequences, I think is difficult to make a simple constitutional argument for there's a vast difference between that and whether polygamy can be criminalized in a way that, for example, bigamy is criminalized. Having willfully entering into multiple legally binding marriages simultaneously whether with the information or without, whether you're fraudulent about it or whether you're open about it. I think prosecuting polyamorous, that is to say, people who are cohabiting reproducing otherwise having sex with, having intimate sexual partnerships with more than one person at a time I think prosecution of those people should be off the table. I mean, apart from other things they might do like include as so many of the polygamists, including religiously motivated polygamists to underage people in their sexual and reproductive and quasi marital activities, but just having more than one sexually intimate partner who is also a life partner and a reproductive partner, criminalizing. That should be true until the court overturns Lawrence and those kinds of cases. That should be difficult to be even more difficult. And this gets to my other specialty of lawn religion. If the claim is made as was made by the Sister wives, family and other people who have brought litigation after Lawrence and Oberge saying at the very least, don't come after us criminally for our polygamous lifestyle. This court has clearly said that treating religiously motivated activities worth them even remotely comparable, analogous activities violates the free exercise of clause and therefore the claims brought by the Sister Web group, for example, that the fact that we are public about our polygamy and religiously motivated in our polygamy should not lead us to being singled out for prosecution. When you leave all of these informal polyamorous alone, that is an argument that has a great deal of attraction with the current Supreme Court. And that is a very different argument involving a very different set of claims than the argument should the law recognize as a marital status the relationship of more than two people. So thank you very kind of all.
[01:08:58] Kim Krawiec: Thank you. Thanks for doing this. A lot of fun. I do not understand what happened this year. Every guest so far has basically presented a constitutional paper. It's been an odd year. Even the philosophers wanted to bring up the Constitution.
[01:09:11] Mary Anne Case: I'm like what another conversation we could have had is the difference money makes, right? Why transaction for free is sometimes more and sometimes less heavily regulated than a transaction for money.
[01:09:27] Kim Krawiec: Anything writer or Brian you guys want to say before we sign off?
[01:09:32] Reidar Composano: I just want to say thank you. Definitely give me a lot to think about.
[01:09:36] Kim Krawiec: Brian, anything from you?
[01:09:39] Bryan Blaylock: Nothing additional that probably wouldn't land us here for another couple of hours. Just thank you for taking the time to join us today and hopefully you had a good time.
[01:09:48] Kim Krawiec: I did. All right. It was good to see you, Mary Anne. Thanks for joining us. Okay, bye.