Family Law

Private Sperm Donation: Legally Superior? Or Questionable?

Forget sperm banks. This 28-year-old cuts out the middleman, going directly to people who want to have babies.

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Kyle Gordy is a 28-year-old man who lives in Southern California. He is also a “private” sperm donor. That means that Gordy does not go through a sperm bank when he donates his sperm, and instead cuts out the middleman, going directly to people who want to have babies.

Unfortunately, being a private sperm donor often means that the sperm does not undergo the routine screening and testing process that sperm banks have in place. Gordy, however, notes that he does undergo frequent testing for sexually transmitted infections and offers recipients the option of paying for any other testing, such as genetic screening. Why would hopeful parents go this route? Well, unlike sperm banks, Gordy provides his sperm for free! He also has a pretty good marketing campaign going, as he personally promotes his services to intended parents. Gordy explains his motivation — he doesn’t expect to raise children of his own, so this is his way of having kids, while also helping others.

Gordy explains the benefits of choosing his sperm over a sperm bank: “1) I do not charge; and 2) You know what you are getting.” Gordy cites to the infamous Xytex case — which I have previously written on — wherein a sperm bank under-delivered on its promises to numerous hopeful parents. Initially, they were told that the sperm was from a donor with a 160 IQ, a Ph.D. in neuroscience, and proficiency in five languages. Wow. That would be impressive, if it had been true. However, the sperm bank did not verify any of that information. And the recipients later learned that their children were, instead, genetically related to a schizophrenic, college drop-out felon. Not nearly as impressive.

But even granting Gordy’s point that some sperm banks have been unreliable at fulfilling their promises, he faces fundamental legal issues as to the possible responsibility and liability for the children conceived from his donations.

Should I Sign A Fake Name On The Contract?

I spoke with friend-of-the-column Amira Hasenbush, assisted reproductive technology legal specialist and sperm-legal-issues guru (and podcast guest!), about the legal pitfalls of private donation arrangements. Gordy explained that while his practice is to confirm to his satisfaction that recipients are financially able to provide for the child, he does not enter into written contracts with single women, because of his concerns over unknown liability. In fact, he explained, one recipient demanded that he sign a written contract. Fearing that the recipient or the government may one day seek child support, and that the contract would make it easier to find him, he opted to sign a fake name. (This is one of those moments where the lawyer poker face comes in handy to avoid the noticeable eyeroll or groan.)

Hasenbush discussed the statutory protections provided in Gordy’s home state of California. While many states require a sperm donation to take place under the supervision of a licensed physician, since 2016, California Family Code Section 7613 has also provided protections to donors and families who go the at-home route. California law provides for protections in non-clinic donations if (1) there is a signed agreement before conception or (2) if there is no written agreement, but the court can find clear and convincing evidence that there was an oral agreement that the sperm donor was not intended to be a parent.

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So Gordy is in luck to live in a state that is protective of non-doctor-supervised oral donor arrangements. But given the burden of providing clear and convincing evidence (to a judge, which means you are involved in expensive litigation) — and the fact that people living in California occasionally overstate or lose their fortunes — he might want to sign a written agreement before conception. With like, his real name.

As for the argument that signing a contract makes him easier to find, the reality is that he will be easy to find no matter what. Even if the recipient hadn’t already been in direct contact with him (which is most often how it works in a private donation arrangement), DNA testing has become prevalent and reliable, unearthing identities and new discoveries every day. Ancestry.com, your help line is ringing.

What If The Recipients Break Up?

Gordy explained that another legal concern he has is when his recipient couples divorce or split up. Does that put him at greater risk of child support? Logically that might increase the chance of one of the parents trying to disclaim themselves or the other parent as having obligations to the child, leading to a parent, or the state, coming after Gordy. However, the same legal analysis would apply in those cases. It would be irrelevant whether the intended parents are together or not when a court makes a determination about whether the donation fell under California statutory protection. The California test turns on the agreement of the parties prior to conception. Of course, in any other jurisdiction, that could be a very different story. Additionally, if Gordy were to act as a parent (by, for example, taking the child into his home and holding him or her out as his own natural child), he could turn himself into a legal parent pursuant to California Family Code Section 7611(d). This was the ruling in the infamous Jason Patric case.

Stop Having Sex With “Recipients”!

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Gordy also explained that because some recipients consider it more effective, sometimes he provided his donations to recipients the old-fashioned way. That is, cough, through sexual intercourse. Legally speaking, that sexual intercourse would not fall into the purview of assisted reproductive technology. Nor would it be sperm “donation” under California law. It is something else. So even in the Golden State, that kind of Californication could get Gordy into trouble.

Hasenbush warns recipients “buyer beware.” Not all private donors are like Gordy, undergoing frequent STI testing and offering additional testing. Sperm banks provide screening for sexually transmitted infections, as well as serious genetic conditions (although possibly not always to the level promised). Either way, it’s best to carefully confirm what kind of screening should be completed and what has been completed. And if it’s a private donation, maybe check that the donor’s ID matches the named signed on the contract. Remember that there’s no such thing as a free lunch. Or in this case, sperm. Oh, gross. Sorry.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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