The Legal Flaws Of The Sperm Kings

A few days ago, the New York Times published this excellent piece on the pandemic-induced shortage of sperm and the rise of “sperm kings” — men putting themselves out there, way out there, through the internet and other means, to widely offer their sperm to those looking to conceive. One of the sperm kings featured in the article was a guest on the podcast I co-host, back in 2019. Although the article didn’t mention it, I will go ahead and throw out there that “Kyle Gordy” is not the gentleman’s real name. (There was some skepticism as to the truth of his story, as well as his intentions, and in 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.)

Given the numerous scandals with various sperm banks, as well as the new shortage of supply, it’s no wonder that those hoping for a family (but missing a key ingredient) are turning to such gray-market sources. For those considering such a route, I say, buyer (or donation recipient) beware! Here are the top three legal problems with sperm king donor arrangements.

  1. “Natural Insemination,” AKA Sex With The Donor

As noted in the article, as well as explained by Gordy and other sperm kings, these popular donors frequently provide the goods through “natural insemination” (or “NI,” if you are really into this world). Translation: sex. They will have sex with you in order to “deliver” their sperm to you. Directly. Like, really directly.

This presents the riskiest option legally. To be sure, most states have some form of a donor statute, providing protection for recipients to be recognized as the legal parents of their donor-conceived child, and providing donors with no legal rights or responsibilities to resulting children. But these state laws invariable do *not* include “natural insemination,” and often specifically clarify that any sexual activity resulting in a child is outside of the protection of the statute. This is exemplified by sperm king Ari Nagel, and the multiple paternity cases that have been successful against him, leaving him financially responsible for various children resulting from his NI or other nonstatutorily-compliant donation activities.

  1. Contracts, Or Lack Thereof

As an attorney focused on assisted reproductive technology law, of course, I am going to say you should hire an attorney — two really (one for recipients, one for donor) — to draw up and negotiate a contract before any goods are exchanged. But really. This is a vital protective step for both sides of the transaction, as well as for the future children. Children, after all, are not replaceable widgets. And there are some very real issues that the parties should be discussing in detail and agreeing upon, in writing, before moving forward. Such as what kind of future disclosures will be shared. If the donor finds out about a serious genetic condition that he could have passed on through his donation, will he agree to contact all recipients promptly? 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 am guessing that Sperm Kings frequently do not go through the time and effort to enter into well-drafted and carefully thought out contracts with their recipients. Scarily, in the podcast with Gordy, he noted that one donation recipient asked him to sign a contract, so he merely signed (another) fake name. Let’s see how long that holds up! Not a legally recommended route.

  1. Marrying Your Half-Sibling

At least one of the sperm kings within the New York Times article admitted he was looking to “get his numbers up” — the number of children conceived from his sperm. The noncynics among us tend to attribute best intentions to sperm donors. We hope that these donors really just want to help others in this personal and meaningful way. We don’t want to think that there is something narcissistic or twisted about a man actively trying to sire as many children as possible. Given certain cases, however — such as the Dutch donor with possibly 1000-plus children — the reality is that some donors have some pretty questionable motives that exponentially increase the chance that one ends up unknowingly dating (or marrying) a half-sibling.

Professor Jody Madeira, a law professor steeped in the legal issues of assisted reproductive technology and sperm king-type behavior, readily sympathizes with individuals wanting children, but having trouble accessing the donor sperm they need. However, Madeira explained, “Men who provide sperm to others over Facebook groups and other sites are engaging in reckless behavior. If they have an STD or a genetic condition, there is little that those who use their samples to conceive a child can do to hold these donors accountable.” Moreover, there is no way to track how many children each of these serial donors conceives, because no one but the donor himself can track the donation activities.

Don’t get me wrong. Donors are amazing, dream-fulfilling souls. But I don’t think it’s too much to ask that each donor limit their dream-fulfilling activities to a reasonable number of lucky recipients, and be willing, for the sake of the recipients, the future offspring, and themselves, to go through the work of following state law and having lawyers assist with a contract protecting all parties — and hopefully looking out for the interests of the next generation.


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.

Bank PACs To Think About Financing Efforts To Shred Constitution For A Little While

Republicans have long relied on corporate political action committees to help fund their campaigns, and those in the financial services sector have been particularly partial to them. After all, what Wall Street titan can say no to lower taxes, less regulation and a generally sympathetic ear?

Law School N-Word Controversy Is More Complicated Than It Appears At First Glance

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I spend an unfortunate amount of time writing about law school professors’ use of the n-word. You might think that it wouldn’t come up that often, but you’d be wrong, very wrong. What is it about the thrill of impropriety that makes white law professor don a cloak of “academic freedom” and just let the full n-word fly?

Anyway, so when Above the Law received word about UIC John Marshall Law Professor Jason Kilborn’s “dark and vile verbiage on a Civil Procedure II exam” and that the question at-issue “contained a racial pejorative summarized as follows: “‘n____’ and ‘b____’ (profane expressions for African Americans and women)”” I fired up my keyboard and got ready to go after the prof. But, as I dug into the issue, it became clear there was a lot more going on.

The petition is a call to action for “Insensitive and Racist Content” on the exam, and when I initially read the petition, my impression was that the professor had used the full slur on the exam. (And I bet a lot of other people that read — and potentially signed — the petition thought that too.) But that petition does not “summarize[]” the exam as it purports to do — it provides a direct quote. By that I mean the exam did not use the full n-word (or the b-word for that matter), opting instead for the euphemism. Which is… the exact sort of adaptation and awareness of potentially traumatic racial issues that folks have historically asked for when professors claim the right to drop the full n-word just because it’s an academic setting.

No one wants to be in a place where discussing the way racism shapes the legal system is off limits. Turn on the news and it’s very clear that white supremacy is far from behind us and continues to impact the law. Legal education needs to have these admittedly difficult discussions but finding the right balance is essential.

Kilborn provided the following context for the decision to use the question (and he notes he’s used the same question with the euphemism for 10 years without incident):

Employment discrimination is among the most common topics of federal civil litigation, and our textbook authors use that context frequently, so it’s certainly appropriately contextual. I was also trying to acknowledge the challenges that women of color still face in the workplace and the important role of civil procedure in discovering and addressing these wrongs. The only question seems to be whether it was problematic for me to be specific (in abbreviated form, to avoid actually using these horrible words) about what the manager had heard others say. I don’t want to make anyone feel unnecessarily distressed during a high-stakes exam, but I am just flabbergasted at the reaction here for the first time in ten years of consistently administering this very question to classes every bit as diverse as the one that sat for this exam this semester (though I have no idea exactly WHO is reacting in this way or why, as no one from the leadership of this campaign against me has attempted to communicate with me in any way).

As a white person, I cannot know what it’d be like to read an abbreviated form of the slur on an exam. And according to the Black Law Students Association at the law school, students taking the exam were upset by the language:

And here’s BLSA’s full statement on the issue:

Unlike other professors who have been confronted with inappropriate language, Kilborn did not trot out the academic freedom trope, or insist he knew what’s best for students or sue the law school for reverse discrimination (all actual reactions from professors, natch). He seems genuinely distressed about the entire affair, and has apologized for using the abbreviated form of the word on the test (something else law profs aren’t known for). Kilborn told Above the Law:

I am fully prepared to accept responsibility for using a context and first-letter abbreviated reference that caused anyone to feel distressed—I absolutely did not and do not want this, I’ve expressed regret for it, and I’ve learned something valuable here. But the right way for BLSA and others to react here is anything other than what they’ve done, and I hope you don’t further this unnecessary, unwarranted, and unconstructive attack on me. If someone inadvertently bumps into you on the street and says “hey, sorry about that” quickly, I hope none of us believes the appropriate response is to pounce on that person, beat them mercilessly, and disseminate all manner of invective about them to their employer and all over the internet. BLSA has actively pursued a campaign against me by contacting (1) central UIC administration, (2) my dean, (3) Instagram, (4) LinkedIn, (5) Channel 2 news, and perhaps to other news outlets, too, and (6) formally filing a complaint with the Office of Access and Equity. This is the office at UIC that deals with instances of alleged discrimination and harassment. When my dean mentioned to me that there was some issue with my question, I suggested the notion of my expressing regret for distressing anyone, and the dean put me in touch with the OAE for their view. A representative from that office was provided the question and the context, and we had a Zoom call that very evening, in which the rep assured me I had done nothing at all wrong, but she supported my idea to express regret if I my re-use of that question made anyone feel uncomfortable. I did that, and here we still are …

I love my students—EACH AND EVERY ONE of them, and I’ve gone out of my way to be supportive of the careers of women of color and others. I’ve done my best to use the same first-letter reference to that word that I see all over the internet, including in the commentary of people explaining that it is entirely inappropriate to use the word—and they reference it as “the n-word”—again, which is exactly what I did. For me to be cast as some sort of insensitive bigot because I used the very same first-letter reference to a horrible word that Civil Procedure is designed to root out and address is … a disservice to the role that law plays in our troubled society and the role that we lawyers have to play in rooting it out and eradicating it.

The law school provided this statement about the incident:

The Law School recognizes the impact of this issue. Before winter break, Dean Dickerson apologized to the students who expressed hurt and distress over the examination question. The Law School acknowledges that the racial and gender references on the examination were deeply offensive. Faculty should avoid language that could cause hurt and distress to students. Those with tenure and academic freedom should always remember their position of power in our system of legal education.

The Law School is working with UIC’s Office for Access and Equity to conduct a thorough review of this matter, and Dean Dickerson and other Law School and University leaders have scheduled a meeting with student leaders. We remain committed to ensuring that all of our students have a safe and supportive environment and that all members of the Law School community live up to our shared values.

It seems like an honest an open conversation is exactly what’s needed. Whether you think Kilborn should have included that particular detail in the exam is a fair question, but he at least tried to be aware of the sensitive nature of the topic and seems committed to doing better.


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Some Lawyers Can Work On Their ‘Bedside Manner’

Many physicians are evaluated not only on their medical knowledge but their “bedside manner” when interacting with patients. Bedside manner is usually defined as the way a physician speaks and connects with patients, including how they break bad news, how they inform patients of medical issues, and other qualities. The legal profession is also a people-centric field, and lawyers often need to interact with clients in a personable and empathetic way during a representation. However, many lawyers can work on their bedside manner and not only focus on their legal arguments, but how they interact with the people they represent.

Numerous times in my career, I have seen attorneys acting too much like lawyers when interacting with clients, doling out bad news, and reassuring people who may face legal issues. Sometimes, lawyers wish to hedge their statements so that they cannot be liable if something they say turns out to be untrue. Of course, in some situations, it is important to be clear about expectations so that attorneys do not mislead clients.

However, lawyers should not let their instincts get in the way of reassuring clients and having positive interactions with the people they represent. For instance, one time earlier in my career, I participated in a conference call with a client who had just been served a demand letter. The client was extremely distraught about the whole situation, and he kept asking if everything was going to be okay. The client did not want to be sued, and of course, litigation is a daunting proposition for everyone. As a result, the client was definitely looking for some reassurances from his counsel. However, another attorney on the call kept hedging everything he said with “to the best of knowledge” or “that is my understanding” so that he left some wiggle room in case he said something that turned out to be wrong. The client was not happy with these responses, and he kept asking if everything was going to be okay.

Eventually, I stepped in and said that I didn’t definitively know what would happen in the future, but the client would receive the best legal representation possible. I even said that I would assume all of the worries the client had about his legal issue so the client could just live his life without having to think about what was going to happen next. The client seemed very happy that I spoke to him like an empathetic human being rather than a lawyer who was primarily concerned with covering his own butt, and this helped improve the representation and my connection with the client.

Another way that lawyers can work on their bedside manner is with the words they use with clients. Attorneys often use technical jargon when speaking to clients and other people involved in legal matters. Sometimes, such legalese is used because it is just easier for attorneys to convey a thought with these words. Other times, attorneys may wish to demonstrate their experience by using terms of art that are associated with the legal issue with which they are involved. However, people who do not have a legal background may not appreciate the use of words that are difficult to understand.

One time at the beginning of my legal career, I was tasked with signing in-state subpoenas connected with an out-of-state litigation matter. I had to speak to the client about the process of serving in-state subpoenas related to an out-of-state matter, and I kept referring to the documents as subpoenas duces tecum and subpoenas ad testificandum. The client was confused by my use of such terms, and she ask me to speak to her in language that was easier to understand. As a result of this experience, I never used unnecessary technical terms while speaking to clients again, and I made sure that I spoke about a case only in layperson’s terms.

Lawyers can also improve their bedside manner by connecting with their clients in a more meaningful way. Far too often, lawyers view themselves as merely having a transactional relationship with clients and do not wish to go out of their way to connect on a deeper level. However, clients are far more likely to recommend a firm to their friends and give repeat business if they have a meaningful personal connection to an attorney.

For instance, I always try to have a victory lunch with clients after achieving a major win. The occasion not only celebrates a victory, but ensures that the client has a good memory of their lawyer and can connect with their lawyer over a meal rather than in an office or over the phone. In addition, whenever practical, I try to travel to clients to deliver settlement money rather than mail a check. In this way, I can see them face-to-face and do a solid for a client that they will hopefully remember when evaluating future needs for legal services. In addition, before the pandemic, I tried to see major clients in person on a regular basis to personally discuss matters and forge a deeper connection.

All told, legal professionals should not always act like lawyers when interacting with clients. Sometimes, empathizing with clients and adopting a good bedside manner can be important to serving clients and building a practice.


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Coup Coup Ka-Choo

(Photo by Win McNamee/Getty Images)

A lot has happened since we last convened, and we’re here to talk about it. What’s the standard for “incitement”? How does the 25th Amendment work? Can Amazon really kick Parler off their servers? All that and an update to last week’s discussion about Biglaw’s involvement in Trump’s effort to pressure Georgia officials to “find” votes.

Turns Out There’s No Voter Fraud In Georgia After All. Surprise!

Following the Democratic sweep at the ballot box in Georgia, Republican officials are racing to tighten election laws to prevent a repeat of the purported massive electoral fraud they claim took place this cycle. At the same time, Trump’s handpicked Peach State fraud buster, Acting U.S. Attorney for the Northern District of Georgia Bobby Christine, is admitting privately to his staff that actually there isn’t any fraud at all. Ooopsie!

“Quite frankly, just watching television you would assume that you got election cases stacked from the floor to the ceiling,” Christine said Monday on a call with lawyers from the Northern District Office which was leaked to the Atlanta Journal-Constitution. “I am so happy to find out that’s not the case, but I didn’t know coming in.”

Why exactly he didn’t know it coming in is not clear — the governor and secretary of state have been saying as much for weeks, and so have the Georgia Bureau of Investigations and the FBI. Did he think officials in his own state were lying about easily verified matters of fact and law?

Nor is it clear why he hasn’t announced his findings publicly, particularly when the integrity of the ballot is a matter of such grave national importance. Did he miss the whole violent insurrection last week by people who’ve been led to believe this election was somehow stolen?

“I would love to stand out on the street corner and scream this, and I can’t,” Christine explained to the staff of the office he just took over, without explaining why exactly it’s impossible to disabuse the public of dangerous misconceptions about the presidential election. Bill Barr was able to come out and state publicly there wasn’t rampant fraud, and nothing bad happened to … Oh, well, yes, there’s that.

Last week, President Trump abruptly shoved aside the U.S. Attorney for Northern District of Georgia, Byung J. “BJay” Pak, and replaced him with Bobby Christine, the U.S. Attorney for the Southern District of Georgia. Just hours after the infamous phone call where the president pressured Secretary of State Brad Raffensperger to “find 11,780 votes, which is one more than we have” and described Pak as “your never-Trumper U.S. attorney there,” Pak emailed his colleagues announcing that his planned January 20 resignation was being bumped up due to “unforeseen circumstances.”

According to the Wall Street Journal, those “unforeseen circumstances” were that president was pissed he wouldn’t arrest anyone for election fraud.

A senior Justice Department official, at the behest of the White House, called the Trump-appointed U.S. Attorney Byung J. Pak late on the night of Jan. 3. In that call the official said Mr. Trump was furious there was no investigation related to election fraud and that the president wanted to fire Mr. Pak, the people said.

Bypassing the first assistant Kurt Erskine, Christine was tasked “by written order of the President” to run both offices concurrently, prompting suspicion on these pages and elsewhere that something corrupt was afoot. And indeed Christine showed up within two days trailed by two election lawyers from his own, smaller office and an outside attorney with experience in public corruption prosecutions.

“Mr. Pak’s forced resignation against the backdrop of White House insistence to prosecute purported election offenses is then followed by the curious appointment of an outsider who immediately brings in election prosecutors from outside the district — it all gives rise to a ready inference that the newcomers are willing to pursue what was troubling enough to cause Mr. Pak to resign,” John Horn, a former U.S. attorney for the Northern District of Georgia told the Washington Post.

“I’m not coming up here to be an election lawyer. I’m not coming here for that purpose,” Christine blithely assured the lawyers on the call, although on his very first day in Atlanta he met with the FBI, GBI, and DHS to review the office’s handling of the election cases.

When asked why Erskine wasn’t allowed to take over, as would be standard practice, Christine demurred, “I don’t think that’s a question I’m going to get into. I appreciate you asking it; I empathize for why you would ask it, but I’m not going to get into that.” Which was no doubt reassuring to the staff attorneys wondering exactly what havoc awaits them in the time between Monday and whenever Joe Biden manages to get someone competent in to the Northern and Southern Districts of Georgia.

TL, DR? Just because the coup didn’t work doesn’t mean it wasn’t corrupt as hell.

Trump’s pick for U.S. attorney in Georgia dismisses election fraud claims: ‘There’s just nothing to them’ [AJC]
White House Forced Georgia U.S. Attorney to Resign [WSJ]
U.S. attorney in Georgia: ‘There’s just nothing to’ claims of election fraud [WaPo]


Elizabeth Dye lives in Baltimore where she writes about law and politics.

Sobriety At 60

Looking Better: Jobs in New York, Kansas City, and Singapore

Looking Better: Jobs in New York, Kansas City, and Singapore

Kinney Recruiting is a market leader in helping attorneys with relocation job searches, whether to the opposite coast, the other side of the world, or your hometown. Learn more.

Kinney Recruiting is a market leader in helping attorneys with relocation job searches, whether to the opposite coast, the other side of the world, or your hometown. Learn more.

A Tech Pro’s Guide To Surviving The Remote Firm

As legal tech pros have learned over the past several months, an IT provider is likely to get raked over the coals whenever a Zoom call fails — for any reason.

A more recent trend: Law firm helpdesks have been receiving emails showing an internet “speedtest,” with senders — often inaccurately —
presenting this as proof that there are problems with a particular network.

In this environment, how can legal tech pros demonstrate to sometimes-skeptical clients what’s really causing a particular problem?

Join Pingman Tools and Above the Law on February 10th at 1 p.m. ET for a discussion of the connectivity challenges that arise when supporting the remote law firm.

What you’ll learn:

  • How to prove what’s really causing a tech problem
  • How network monitoring tools can safeguard privacy
  • How to facilitate communication while reducing finger-pointing

By filling out the form you’re you are opting in to receive communication from Above the Law and its Partners.

Rudy Giuliani Blames ‘Game Of Thrones’ For Accidentally Inciting Violent Insurrection

(Photo by Drew Angerer/Getty Images)

There’s a colorable argument that Donald Trump’s speech before his followers launched a violent assault on the U.S. Capitol didn’t cross the legal threshold required to hold him criminally liable for inciting a riot. Others disagree and see this as a clear breach. There’s a very smart argument that even if this doesn’t superficially cross the line, it constitutes incitement because the law’s reliance on “immanence” is anachronistic in a world of social media. In any event, there’s no credible argument that criminal liability is a prerequisite for an impeachment and conviction unless you’re a shameless hack.

But Rudy Giuliani’s words that day blew past the incitement standard and spiked the ball in the Brandenburg endzone by telling the rowdy mob that the time had come for “trial by combat” with Democratic legislators and election officials.

Thankfully, Rudy has an answer for anyone who thought he was calling for violence when he explicitly called for violence: blame “Game of Thrones.”

“I was referencing the kind of trial that took place for Tyrion in that very famous documentary about fictitious medieval England,” Giuliani told Samuels. “When Tyrion, who is a very small man, is accused of murder. He didn’t commit murder, he can’t defend himself, and he hires a champion to defend him.”

George R.R. Martin has said his work is inspired by the War of the Roses, but it’s a bit of a stretch to call it a dramatized documentary of medieval England, no matter how many dragons Richard Plantagenet raised. Does Rudy not understand or grasp what was happening in Game of Thrones? And I get that no one understood what was happening in season 8. The sexposition was pretty clear. And if he did watch the show, what character does he think he’s working for right now other than Joffrey? Is Rudy Cersei in this analogy? Siblings are a little different than screwing your cousin for years, but it’s in the ballpark.

Though Rudy has stumbled into a point: “Game of Thrones” has embarrassingly reintroduced Americans to the concept of trial by combat and they’re asking for it as if it’s not the historical and intellectual equivalent of using the ordeal by water to root out witchcraft. It’s still technically on the books in New York, prompting a fantasy and sci-fi loving attorney to ask for it. The judge declined, and the lawyer later ended up in prison for a kidnapping plot, a sign of how this fetishization of primitive violence can spill over. Knock it off, people.

Not that this defense does all that much for Rudy’s cause. Giuliani is saying, “if you don’t think the legal system is working for you, hire someone to violently lash out and kill folks on your behalf,” which seems like… exactly what happened later that day. Almost like there’s a direct line from Giuliani’s speech to a dead Capitol Police officer.

Imagine how much better off we’d be if Rudy had just binged Sex and the City instead.

He’s such a Samantha.

Rudy Giuliani says his ‘trial by combat’ comment during Trump’s January 6 rally was a ‘Game of Thrones’ reference, not a call to violence [Business Insider]
The Confederacy Finally Stormed the Capitol [The Nation]
Incitement, Imminence, and Free Speech: The Internet is a Game Changer [Dorf on Law]

Earlier: Judge Admits Trial By Combat Is Available In New York… Then Declines To Order
Trial By Combat Attorney Going To Need Those Fighting Skills In PrisonIt
Rudy Giuliani Challenges Antifa To Fight Him Mano-a-Mano
Alan Dershowitz Willing To Defend Donald Trump Again, Shocking Absolutely No One


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.