A few days ago, the New York Times published this excellent piece on pandemic sperm shortages and the rise of “sperm kings” – men who are out there, far out, widely offering themselves their sperm for use on the internet and other means those who want to get pregnant. One of the sperm kings featured in the article was a guest on the podcast I hosted together in 2019. Although the article didn’t mention this, I’m going to toss out that “Kyle Gordy” isn’t the gentleman’s real name. (There has been some skepticism about the truth of his story as well as his intentions, and on a rare request for a guest on the podcast, he was asked to undergo a background check. Good news. No criminal record to speak of, ladies.)
With the numerous scandals involving various sperm banks, as well as the new supply shortages, it’s no wonder that those hoping to have a family (but missing an important ingredient) turn to such gray market sources. For those considering such a route, I say buyers (or donor recipients) take note! Here are the top three legal issues with Seed King donor agreements.
“Natural Fertilization”, AKA Sex With the Donor
As mentioned in the article and explained by Gordy and other Sperm Kings, these popular dispensers often deliver the goods through “natural fertilization” (or “NI” if you are really in love with this world). Translation: sex. They will have sex with you to “deliver” their sperm to you. Directly. How really direct.
This is legally the riskiest option. Of course, most states have some sort of donor law that provides protection for recipients to be recognized as the rightful parent of their donor-fathered child, and does not give donors any legal rights or obligations towards the resulting children. These state laws, however, invariably do not contain “natural fertilization” and often make it clear that sexual activity that leads to a child is outside the legal protection. This is illustrated by Sperm King Ari Nagel and the numerous paternity cases that have been successful against him and make him financially responsible for various children resulting from his NI or other non-statutory donation activities.
Contracts or lack thereof
Of course, as an attorney focused on assisted reproductive technology law, I should say that you should hire an attorney – two really (one for recipient, one for donor) – to draft and negotiate a contract before any goods are exchanged . But really. This is an important step in protecting both sides of the transaction and the future children. After all, kids aren’t interchangeable widgets. And there are some very real issues that the parties should discuss in detail and agree to in writing before proceeding. For example, what kind of future disclosures will be shared. If the donor learns of a serious genetic disease that they could have passed on through their donation, will they agree to contact all recipients immediately? What are the rights of the resulting children to know who the donor is or how many half-siblings might be out there?
While there are exceptions to every rule, I suspect that Sperm Kings often fail to expend the time and effort to enter into well-crafted and carefully thought-out contracts with their recipients. It was alarming that he noticed on the podcast with Gordy that a donor had asked him to sign a contract so that he was simply signing a (different) false name. Let’s see how long it will last! Not a legally recommended route.
Marry your half-sibling
At least one of the sperm kings in the New York Times article admitted that he wanted to “increase his numbers” – the number of children conceived from his sperm. The non-cynics among us tend to attribute the best of intentions to sperm donors. We hope these donors really just want to help others in this personal and meaningful way. We don’t want to believe that a man who is actively trying to father as many children as possible has anything narcissistic or twisted about it. However, in certain cases – like the Dutch donor with possibly more than 1000 children – the reality is that some donors have some rather questionable motives that exponentially increase the likelihood of unwittingly dating (or marrying) a half-sibling.
Professor Jody Madeira, a law professor who studies legal issues related to assisted reproductive technology and sperm king behavior, easily sympathizes with people who want children but have difficulty accessing donor sperm they need. However, Madeira stated: “Men who provide semen to others through Facebook groups and other websites are inconsiderate. If they have a sexually transmitted disease or a genetic disorder, there is little that those who use their samples to conceive can do to hold those donors accountable. “In addition, there is no way of keeping track of how many children each of these serial donors is receiving, as no one but the donor can track donation activity.
Do not get me wrong. Donors are amazing dream-fulfilling souls. But I don’t think it is asking too much for each donor to limit their dream-fulfilling activities to a fair number of happy recipients and be willing to go through the work, obey state law, in the interests of the recipients, future offspring, and themselves and having lawyers helps with a contract that protects all parties – and hopefully looks after the interests of the next generation.
Ellen Trachman is the managing director of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at babys@abovethelaw.com.
