Professor Anita Bernstein Discusses New Book, ‘Making the Best of Semen’

Anita Bernstein, the Law School’s Anita and Stuart Subotnick Professor of Law, has released a new book this month titled Making the Best of Semen  NYU Press, December 2025).   

In it, Bernstein explores the extraordinary benefits and harms that semen delivers when it travels onto mucosa and lays out an unmentionability problem that shields semen from controls and documents the upheavals for which it is responsible. Some of these upheavals harm, or even end, human lives; others are extraordinarily desired and desirable. Regulation, she writes, can improve both consequences.   

Below is a Q&A with Bernstein about her latest work.  

Your previous book, The Common Law Inside the Female Body (Cambridge University Press, December 2018), examined U.S. common law through history and its role in strengthening women’s rights and freedoms. “Negative liberty,” you said, gives women the right to say no to what they don’t want. Did this research lead you to the topic of your new book and if so, how?   

Yes, one led to another. At some point it occurred to me that I was paying no attention to the anatomy shared by half of humanity. Same neglect from other writers. What if we looked at the male body with an eye toward the kind of management, control, and regulation that female bodies get, I wondered.  

Your new book, Making the Best of Semen, argues that semen is both uniquely beneficial and uniquely hazardous — and that it has been overlooked as a subject of regulation. What first inspired you to take on this “unmentionable” topic, and why do you think it has escaped legal scrutiny for so long? 

For several years now I’ve seen stories in the press fretting about synthetic estrogen in the groundwater that comes from urine excreted by women on the Pill. Endocrine disruption. Blaming women for this water pollution is unfair, I thought. Most users of oral contraception are taking one for the team, so to speak. The male pill was synthesized decades ago and still isn’t sold. From there, I noticed that urine and water aren't the only fluids that make a difference when they travel. 

As for why the hazards of semen have escaped legal scrutiny for so long: it sure looks like another variation on male as controller and female as something to be controlled. In the first chapter of the book, I gather evidence of a perspective on semen that sees this fluid as venturesome, willful, entitled to power. Don’t insult it by thinking of it as runoff or seepage. Respect it, goes the thinking. I do respect it, but it is runoff or seepage. 

In a post-Roe landscape where reproductive autonomy is increasingly constrained, how does focusing on semen — rather than on gestation or pregnancy — shift the way we think about reproductive rights and responsibilities? 

The source of every unwanted pregnancy is semen. I certainly want to keep focusing on gestation and pregnancy, but we can also focus on the substance that impregnates. Also, semen has more power to upend and disrupt human lives now that the U.S. Supreme Court has abolished the right to not to be pregnant. I care a lot about the autonomy you mention. Reproductive autonomy requires semen management. 

You explore the idea of semen being a “hazardous substance.” What would that mean in a real-life application?  

The most important thing to keep in mind about “hazardous substance” as a legal label is that it only applies to extremely valuable substances. I say so in the title of the book’s last chapter: “Every hazardous substance is valuable.” Regulatory law uses that term for something that has the power to do a lot of good and a lot of harm. Semen fits that bill. 

Hazardous substances need regulation at three levels or categories. The first is to inform the public of risks and benefits. I show how education can do that for semen—both the K-12 curricular kind of education and the self-learning that we adults practice at our screens and keyboards. Second, people need reliable barriers that can go on or off depending on whether the person in reach of risk and benefit wants to be touched. I call the third path “post-splash remediation,” which means that after the substance touches a vulnerable surface, law should enable the touched person to undo its impact if she wishes. Ordinary regulation works with all three categories. We can apply them to semen too. 

What other kinds of regulatory approaches do you envision, and how might they improve public health or promote equity? 

Regulation at its core means rules written in advance, oriented toward prevention. But there’s also “regulation through litigation,” where courts deliver accountability. In those cases, injury has already occurred and won’t be fended off, but other people can take a lesson from a judicial decision. That’s deterrence on top of compensation. In the book, I say that criminal and tort liability can deter, not just remedy, the harmful landing of semen on another person’s body. 

How? Any examples? 

Stealthily removing a condom just before intercourse without telling a partner who had consented to sex only with a condom could be a crime, as it is in a few states. Or a tort. I also want more liability for substituting one’s own semen for that of an intended biological father in IVF. Physicians who do that mostly get away with it. Colorado made this conduct a tort that it called “misuse of gametes.” It’s also misuse of semen. Because the crime of sexual assault has tiers that use the concept of “aggravated,” state laws could punish rape more severely when the assailant ejaculated onto the victim’s mucosa and less severely when he didn’t. 

Brooklyn Law School has long been known for engaging with emerging and sometimes provocative legal questions. How do you hope this book contributes to contemporary conversations about bodily autonomy, sexuality, and the future of reproductive regulation? 

As I note in the book, there’s only one substance that can both Make People and Make People Sick. That’s unique power. I understand the discomfort about this substance that people feel: I share that feeling myself. But semen deserves attention. 

I hope recognition of semen can join current conversations about making people -- there are many. The death of Roe v. Wade gives more power to the transfer of semen. Semen is also central to desires that we think of as something else. For example, when national governments work to enlarge their population without encouraging immigration—and that’s the choice that every powerful country favors at the moment—they are enlisting semen. So too are the increasing numbers of people who pursue IVF, “sperm washing,” semen sale and donation, and storage of their gametes. I’m glad that semen doesn’t make people sick with HIV as much today as it once did, but its force as a disease deliverer in a connected world needs attention too.