Is Having Your Ex As A Sperm Donor A Terrible Idea?

Turning to an ex as a sperm donor is not an unheard-of proposition.

What’s the newest depressing news about COVID-19? Just kidding! It’s time for a little mental break from coronavirus news to focus on more important things … like celebrity gossip and assisted reproductive technology law.

Congratulations, Anderson Cooper!

First, congratulations to world-renowned reporter Anderson Cooper on becoming a father to surrogate-born baby boy, Wyatt Morgan Cooper. In a sweet and moving announcement, Cooper shared with the world how as a child who knew he was gay from a young age, he thought he may never get to experience being a father. Thanks to advancing assisted reproductive technology and surrogacy, the impossible is now possible. Cooper also generously shared that he is “eternally grateful to a remarkable surrogate who carried Wyatt, watched over him lovingly, tenderly, and gave birth to him.”

Finally some happy news these days! If you want to hear more about this story and my interview with WNYC, check out this link.

The Ex As A Donor.

Turning to other celebrity assisted reproduction news, Khloe Kardashian (the tall one; not the one married to Kanye or the one who used to be with Scott Disick) recently publicly shared her efforts to preserve her future fertility options.

Kardashian has one daughter, True, with ex-Tristan Thompson. She was going through an ova (egg) retrieval procedure, and considering whether she wanted to freeze just her eggs alone or combine them with sperm to be preserved as embryos. While egg freezing technology has improved in recent years, frozen embryos still have higher pregnancy success rates.

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In considering the embryo option and who would provide the sperm, Kardashian spoke with her family about her potential choice for a sperm donor to form such embryos. The donor she had in mind, to their surprise, was her ex and the father of her daughter, Tristan Thompson!

Legally speaking, is having an ex as a sperm donor a good idea?

I spoke with California assisted reproductive technology attorney and sperm legal expert, Amira Hasenbush, about the potential legal risks. Hasenbush explained that under California law, even if a sperm donor and the donation recipient did everything right before the birth — including signing a contract – a sperm donor can still be found to be a legal parent to a child if he later cares for the child by taking him into his home and holding himself out as the natural father. Hasenbush points to the case of celebrity donor-dad, Jason Patric (for those who remember the ‘80s and The Lost Boys — the vampire one).

In that case, Patric agreed to help his ex-girlfriend conceive, and indicated in writing that he would just be a sperm donor. However, after the baby was born, Patric and his-ex got back together, and Patric ended up spending a substantial amount of time with the child. And, significantly, he made a room in his home for the child and held himself out as the child’s father. After the couple broke up again, a legal case ensued where Patric argued that despite originally being a donor, he was entitled to legal recognition as father of his child. The courts ultimately agreed.

Of course, in Kardashian’s case, the situation is even slightly more complex, since Kardashian and Tristan already have one child together. While by itself that isn’t a legally significant fact, it may naturally lead to greater legal risk on both sides. When Thompson spends time with his daughter, True, he may naturally end up spending time with any child resulting from his donation. Both parties may quickly find Thompson in a position to be legally determined a “presumed” parent, where he could attempt to assert parental rights, or Kardashian could attempt to assert parental and financial responsibility.

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Hasenbush explained that she frequently counsels clients who naturally face increased legal risk regarding their family structure, and that turning to an ex as a sperm donor is not an unheard-of proposition.

Hasenbush noted that the law favors black and white, while the reality for many families falls in the in-between gray. When her clients are looking to pursue an especially risky family path, Hasenbush often recommends that they seek counseling or talk to a mental health professional to make sure that they are clear with their intentions before proceeding. However, Hasenbush takes pride in empowering and protecting families that might not fit a traditional mold to the greatest extent possible under the law.

So, should Kardashian have her ex donate sperm? True is, after all, absolutely adorable. But Kardashian may want to think long and hard about the inherent risk of unintended parental rights and responsibilities that would accompany such an arrangement. And she should definitely talk it through with an expert attorney like Hasenbush first.


Ellen 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.