Of the tens of thousands of reported civil cases in Westlaw’s torts database, would it surprise you that a mere 34 opinions in the set use the word “vulva”? Even then, the term is often mentioned only as a quote from a statute, regulation, or expert testimony, or used with reference to non-human animals (baby mink). 74 cases mention the term “oocyte or ovum.” 578 mention the word “vagina.” These small numbers exist alongside 5,954 published civil cases in the database that mention “rape” or “sexual assault.” Courts use terms related to male anatomy more often than their female analogues, but only two to three times more often.
Into this gap concerning bodies and sexuality, Professor Anita Bernstein has consciously “chosen to feel inspired by this silence in the discourse.” (P. 239.)1 If you are feeling squeamish already, I feel your pain. We law professors, judges and lawyers are a pretty staid bunch. When Bernstein first made her unabashed presentation about semen and products liability (in that order) to a packed audience of lawyers and law professors, I will admit to wincing just a bit. Until, that is, I thought more about the strength of Bernstein’s topic and her candor, as well as the importance of precise language when addressing it. In a world of AI and big data, euphemisms such as “privates” and “reproductive tissue” (some actual substitutes in opinions and scholarship) will prevent detection, understanding and study of legal subjects that relate to sexual anatomy. Worse still, the comfortable route of skipping unmentionable topics altogether neglects needed judicial and academic scrutiny.
Consequently, it was with both trepidation and admiration that I first heard, and then read, Professor Bernstein’s exhortation to forthrightly discuss semen in civil law contexts. The upside of violating entrenched norms of “polite company” is Bernstein’s salvo into questions of tort liability related to the commercial sale of semen. The topic is important today and will likely become more so as the use of reproductive technologies such as IVF increases.2
Bernstein’s article advances two central claims. First, she argues that “as long as adverting to [semen’s] existence in public is considered too impolite or eccentric to attempt, people will continue to suffer.” (P. 239.) Suffer because important underlying issues related to sex, reproduction and injury will remain unaddressed. Second, Bernstein argues that “when sold by a commercial provider and alleged to be the source of injury, semen (emitting from any species) qualifies for a products liability label.” (P. 215.) The potential for products liability, Bernstein argues, will both increase legal accountability and improve safety.
On the first issue, the “unmentionability” of semen, Bernstein offers some concrete but humorous examples well suited to her engaging writing style. She peruses medical texts and finds indexes such as the one in Immunology of Reproduction, in which the “s” section tags the word “shrew” but not “semen.” (P. 216.) Even ChatGPT gets in on the shaming. When Bernstein writes a query searching for popular writing about semen, the search response reproaches, in part, “it’s important to note that explicit or adult content is not appropriate for this platform.”
On the second subject, products liability’s application to the commercial sale of semen, Bernstein begins her appeal with an homage to products causes of action which can sometimes provide greater consumer protections than do negligence claims. (P. 221.) In products liability law, the product itself, and not the conduct of defendant, becomes the locus of inquiry. Products liability ascribes “responsibility to a thing.” (P. 219.) This liability tag on products can aid tort law’s big three goals: responsibility, deterrence, and compensation. (P. 221.) With regard to the perennial American favorite of the three, deterrence, manufacturing executives “identified products liability law as a stronger spur to design-decision improvements than both regulation and concerns about reputation.”3
In terms of doctrine, Bernstein relays courts’ apparently unanimous agreement that semen is a “product” for products liability purposes. (P. 224.) This reading, Bernstein contends, accords with both common law and statutes. Laws that shield blood, and sometimes “blood and tissue,” from products liability rules implicitly accept that statutes are needed to prevent liability. In states with laws that bar only blood-related liability claims, semen, ordinarily classified as a “tissue,” may yet be the subject of products liability actions. (P. 228.)
Bernstein sees this resolution as the appropriate outcome. Products liability law governs “items or objects that deliver both utility and risk to human beings.” (P. 231.) Such items include spyware, 3D printing technology, and artificial intelligence. (P. 231.) Semen too, Bernstein observes, “can make people and it can make people sick.” (P. 237.) And tort law is, after all, “an instrument that law applies to the task of anticipating dangers and mitigating their consequences.” (P. 212.) Requiring products to be made safer, or to provide warnings when they can’t, may aid consumer choice and inure to the safety of all. (P. 233.)
Of course, the availability of products liability law to regulate defects related to semen is just the start of the liability questions. Commercial sellers’ failure to screen semen for sexually transmitted infections is one of the clearest examples of potentially actionable liability. (P. 232.) But how far defect and warning liability should extend is a disputed and critical issue. For example, courts have rarely sided with plaintiffs when considering claimed genetic harm to offspring attributable to commercial sales of semen. (P. 233.)
Bernstein is undoubtedly right that the potential for products liability from the commercial sale of semen (as a threshold matter), and the scope of that liability, are important issues that must be addressed in the forthright fashion she models. Legal professionals must graduate from sniggering and blushing to adopt accurate clinical language—here and in so many other contexts. (Think of defamation and intentional tort opinions that examine liability when the defendant uttered “an epithet,” without saying which one).
The use of accurate language to describe culturally shunned topics won’t be easy. As Bernstein wisely recognizes with respect to “new” approaches as a whole, “[t]he past is never dead. It’s not even past.” (P. 211 (quoting Faulkner).) Between Bernstein’s wise counsel, and its execution in the spoken and written word, lies a universe of tradition and discomfort. To begin a new approach we must build another habit. When sex-related topics come up in the courtroom or classroom and we wish, instinctively, to flee to the safety of silence or euphemism, we lawyers must instead force ourselves to directly address subjects such as (write it!) semen.
- See also Anita Bernstein, The Common Law Inside the Female Body (2018).
- See, e.g., Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019).
- P. 223 (citing Joanna Shepherd, Products Liability and Economic Activity: An Empirical Analysis of Tort Reform’s Impact on Businesses, Employment & Production, 66 Vand. L. Rev. 257, 262 (2013)).
