Is Local, Organic Sperm the Next Big Thing?

Findlaw recently reported that the US Food and Drug Administration was seeking to stop Trent Arsenault from donating his sperm on the basis that he was in the business of manufacturing human cells. This apparently is in contravention of US regulations.  While Mr Arsenault has received no payment for his sperm donations, it was his lack of 'sexual intimacy' with any of the recipients that caused him to fall foul of the rules.

The primary concern of the charges against Mr Arsenault (in fact 'his Establishment') is that in failing to screen his sperm for certain agents, he has failed to 'provide adequate protections against the risks of communicable disease transmission'.

To those interested in the question of property in the human body, this case draws attention again to the nature of human cells and the human body itself as an object (rather than a subject) of law.  In deeming Mr Arsenault's gifts of his sperm as 'manufacture', the regulations in question suggest a categorisation of sperm as a thing outside of oneself rather than something that forms part of us (well, as part of Mr Arsenault).  As something considered under the regulations to be independent of a human, the sperm arguably then become capable of being the subject of property rights and interests - in spite of a long-term reluctance of the common law, including US law, to find a property interest in the human body (though exceptions do exist).

It is not suggested that sperm donation be free of regulation - though there does appear to be inconsistency in US regulation of sperm donation that needs to be resolved.  It is however interesting to note that the framework of regulation of 'recovery' and distribution of sperm (and other human cells) adopts the language of manufacture within an 'establishment'.  This gives the appearance of an economic enterprise, presupposing the production of goods, or personal property.  This raises questions such as: can the FDA confiscate Mr Arnault's sperm?  At what point in the 'production' process do his sperm become contraband, or unlawful?  These questions highlight the problematic nature of considering ejaculation and conception as a manufacturing process.

Some argue in favour of investing the human body with the characteristics of property, and others argue against.  In either case, any regulatory framework needs to be clear and consistent in its purpose, and to use language appropriate to the unique character of the human body and its component parts.

(The title is a reference to an article in the Daily Mail Online.)

Live Cattle Exports and Plain Cigarette Packaging: Public/Private Tensions

There are two hot issues in the twittersphere and in the Australian press at the moment that involve a similar paradox - live export of cattle from Australia and cigarette packaging.  While the latter issue has attracted the attention of libertarians, the former takes a more directly economic focus.  Both however involve an intersection between the public and the private.

The cattle industry in Australia is of course regulated in a number of ways, including in terms of animal welfare and public health.  The live export trade is trending though because of the horror attendant on footage of inhumane treatment of live animals in Indonesian abattoirs. Public outcry has resulted in the suspension of live exports to Indonesia until the welfare of cattle can be guaranteed.

While petitions have gained widespread public support, there has been criticism of the government's decision.  The mayor of Charters Towers for example, asks just how far policing of cattle treatment will go.  Similarly, the ABC reports the loss of 'real Indigenous jobs' as a result of the suspension of exports.  Both these arguments are based on economic impacts of the decision - a decision made based on public interest grounds ie animal welfare, that affect private or market based interests. 

Cigarette packaging might seem a world away from live cattle exports, but this issue shares a similar tension.

On the one hand, the Australian government's policy on smoking is based on a public health argument.  Senator Penny Wong in a radio interview identifies that tobacco companies 'market their products and what this does is remove one of the mechanisms for marketing, which is the labelling'.  Cutting smoking will in turn improve public health outcomes and reduce the cost associated with health care for smoking-related disease.

On the other hand, there are two libertarian arguments against a plain packaging policy.  The first of these rests on the right of an individual to engage in whatever behaviours they like - such as smoking.  'Who is the government to tell me not to smoke?'  The second lies in what amounts to compulsory acquisition of the intellectual property in tobacco companies' logos and packaging. 

Part of the debate about the plain labelling is uncertainty about whether it will actually work to reduce the number of smokers.  In one sense though this is a side issue to the tension between the public and the private.  So while this is a cost-benefit (economic) argument (that would require some evidence that plain packaging would result in the cost savings assumed), it is also a values-based argument. This argument goes along the lines of how much regulation of private interests do we want and expect.  Likewise, live exports represents a values-based argument: in what circumstances do we make regulatory decisions that impact on economic interests.

Perhaps what is needed is a debate about the values upon which we make decisions to regulate.  This is not simply a big government/small government issue, but rather a prioritisation of public values.  Such a debate would forestall the need for focus groups or emergency and reactive online petitions to force government action.  It would lead as well as reflect community expectations, and map a clear pathway towards good policy and clear and consistent foundations for regulation.