AuthorBernstein, Anita
PositionSymposium Conference: Are You There Law? It's Me, Menstruation

Joining a conversation about menstruation and the law, this Essay interprets "law" to mean regulation--a source of burden, constraint, and interference justified by reason. The object of my regulatory agenda is a substance perceived by Western thinkers at least since Aristotle as the superior counterpart to menstrual fluid. (1) Traditions that celebrate semen as vital or affirmative, while recoiling from and controlling the other gendered emission that hurts no one, get reality backward. Law as burden, constraint, and interference ought to regulate semen and leave menstrual fluid alone.

Contrast the two substances. One of them started out with the potentially useful function of building a uterine lining. That possibility concluded, menstrual fluid is benign. The other effluvium started out with the potentially useful function of launching a pregnancy. Pregnancy is a good thing when it is desired by the person who has to live with the bulk of pregnancy's detriments. Along with its capacity to do an important job, semen causes quite the array of harms.

A statute on point for this purpose, the Federal Hazardous Substances Act, regulates material that "may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use." (2) Because semen "has the capacity to produce personal injury or illness to man through ingestion, inhalation, or absorption through any body surface," it also aligns with the definition of "toxic" in the statute. (3) Judges, policymakers, litigants, and ordinary people can all learn from well-established legal labels to understand semen as a stark example of an externality.

Nothing in this statute impedes the characterization I propose: The FHSA lists substances that lie outside its purview, (4) and semen is not among them. Labeling, containment, and emergency protocols--splash protection, if you like--are the hazardous-substance safety impositions I would apply to semen.

  1. Semen Danger

    1. Spermatozoa in It

      Led by the United States Supreme Court, law worsens the dangerous nature of semen by thwarting repair of one of the key harms it inflicts, the commencement of an unwanted pregnancy. Ideologues have worked diligently for decades to obstruct a termination right after the Court found it in the United States Constitution. Proceeding at an accelerated pace in 2011-2019, states enacted 483 abortion restrictions to join older post-Roe interferences. (5) With six Justices, including the most recently nominated youngish third of the nine, holding staunchly anti-abortion judicial records, the Court as currently comprised opposes the prerogative of an individual to undo an injury done to her by semen.

      Law-based interference with the rectification of semen-caused harm apparently need not make sense for courts to uphold them. Judges ask whether the burden that an impediment imposes is "undue," (6) an indeterminate adjective that in practice has enabled incoherent and severe burdens to flourish. States whose laws ascribe personhood to a fertilized egg also permit fertility clinics to throw it in the trash. (7) The Supreme Court has upheld legislation that forces formerly pregnant persons and abortion providers to treat a fetus-corpse as human "remains" and give it a dignified burial or cremation, no matter that this material warrants the label "medical waste." (8) A federal statute tendentiously named the Partial-Birth Abortion Ban Act won approval in the Court even though "partial-birth abortion" originates in misogynous rhetoric and fever dreams rather than any health science. (9) Legal-institutional actors, in short, enable semen to wreak havoc by imposing indefensibly hard-to-terminate pregnancy on the unwilling.

      Semen-associated havoc also ensues when pregnancy follows rape and the woman who was raped chooses to remain pregnant. Acceptance of a pregnancy and a baby seems patently different from acceptance of a durable shared-parenting relationship with an adult malefactor, but numerous states show indifference to the difference by requiring a criminal conviction of rape before a rapist-inseminator can be denied custody of the child he generated by his wrongful act. (10) "We do not require convictions for termination of parental rights for such reasons as child abuse, neglect and habitual drug offenses," noted one lawyer-activist after fending off the custody initiative of an inseminator who had not been convicted of raping her. (11)

    2. Seminal Fluid

      The liquid that houses spermatozoa delivers more risks than formation of an unwanted pregnancy. Contact with semen can infect a recipient with the STD bacterial Big Three of syphilis, gonorrhea, and chlamydia. Moving beyond bacteria, a 2017 article in Science reported that dozens of viruses have been found in semen; (12) experts believe that more are present. (13) Of them, HIV, is especially significant: people still die from it...

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