The Unjust Exclusion of Gay Sperm Donors: Litigation Strategies to End Discrimination in the Gene Pool

Luke A. Boso, West Virginia College of Law

Abstract

The purpose of this article is to highlight several litigation strategies that might be effective in ending discrimination against gay and MSM potential sperm donors. The article does not advocate for one litigation strategy over an-other, nor does it purport to solve all of the problems involved with each. The overarching goal is to make a potential litigator aware of some of her strategic legal choices, to highlight the advantages and disadvantages of each choice, and to advocate for creative lawyering. The Note will discuss claims against the FDA under the Administrative Procedure Act, and it will also analyze claims against individual sperm banks that have adopted the FDA’s recommended eligibility requirements under the U.S. and various state constitutions' rights to sexual intimacy and procreation.