In many states, the only thing that separates a dad from a sperm donor is sex. Under federal law, sperm donations between sexually intimate partners undergoing artificial insemination are exempt from the mandatory—and expensive—testing requirements that apply to sperm donations between persons who are not sexually intimate. And according to the myriad proposed regulations of alternative reproduction that have surfaced in recent years, sexual procreation is sufficiently distinct from alternative reproduction to justify burdening the latter, but not the former, with laws that considerably alter the practice of non-traditional family formation as it exists today.
All of these regimes, actual and proposed, reflect and perpetuate the subject of this Article’s critique: reproductive binarism, the belief that sexual and alternative reproduction merit different treatment in law because they are essentially different in fact. Reproductive binarism touches everyone and disciplines many. It undercuts constitutional norms in favor of procreative intentionality and familial autonomy, and unites conservative critics of non-traditional families with those families’ progressive allies, many of whom believe in, if not celebrate, a sex/non-sex binary.
This Article argues that reproductive binarism is factually incoherent and constitutionally deficient, and proposes a unitary system of reproductive regulation based on procreative intent rather than procreative mechanics. Sexual and alternative reproduction are formally similar in ways that reproductive binarism obscures. Even if they were formally distinct, the law still could not treat them differently without violating existing and emerging constitutional norms relating to sex, marriage, procreation and family formation. This Article elaborates on these arguments and concludes by considering what the law might, and should, look like in the absence of a binary that dominates and disciplines intimate and family life not just for those who create kinship in non-traditional ways but for everyone.