Probate, trust, guardianship and inheritance litigation
[frmmodal-content label="50 State Probate Guide"][formidable id=47 minimize = "1"][/frmmodal-content]

California Appeals Court: Deceased Husband’s Sperm Has No Value If It Cannot Actually Be Used

By Andrew Gold, Esq.

In a May 1, 2020 opinion, the California Court of Appeal, Second District, affirmed a trial court’s judgment sustaining demurrers to a surviving spouse’s causes of action relating to her ability to posthumously use her deceased husband’s sperm to conceive a child.

The Facts of Robertson v. Saadat

In Robertson v. Saadat, Plaintiff’s husband, Aaron, entered an irreversible coma due to a rare genetic disorder.  Shortly before his death, the plaintiff arranged to extract his sperm, hoping to one day conceive a child using it.  Plaintiff stored the sperm in a tissue bank that ultimately came under the control of defendants.  Ten years later, plaintiff requested the sperm.  The tissue bank could not locate it.  Plaintiff sued the tissue bank, asserting contract and tort claims under California law based on the loss of her ability to use the sperm to have a child biologically related to her deceased husband.

The California trial court concluded that the plaintiff was not legally entitled to use her deceased husband’s sperm for posthumous conception, and therefor suffered no injury from its loss.    They trial court also ruled that plaintiff could not recover damages for emotional distress or loss of fertility interests under her breach of contract cause of action.

The California appeals court affirmed the trial court’s judgment.

Is A California Surviving Spouse Entitled To Conceive With a Deceased Husband’s Sperm?

No, status as the surviving spouse in California does not entitle the spouse to posthumously use the deceased husband’s sperm to conceive a child.  Two principles undercut the argument that a spouse is entitled to conceive with a deceased husband’s stored sperm.

First, sperm is not governed by the rules that apply to gifts or personal property.  Sperm is gametic material, and thus a unique type of property.  Therefore, the laws of intestacy or testamentary documents that do not specifically provide for the disposition of the sperm do not control its disposition upon death.  “In other words, the fact that plaintiff as Aaron’s spouse may be his legal next of kin has no bearing on whether she may use his sperm for posthumous conception.”

Second, the donor’s intent controls the disposition of gametic material upon the donor’s death.  A spouse, not having provided the gametes at issue, has no “‘interest, in the nature of ownership,'” nor any “‘decisionmaking authority as to the use of [the gametes] for reproduction.'”

Does The Uniform Anatomical Gift Act Apply To Using Sperm For Posthumous Conception?

No.  The Court rejected the spouse’s argument that the Uniform Anatomical Gift Act (UAGA) gave the spouse the right to make an anatomical gift for purposes of “transplantation” which includes conception.

This legislative history of the UAGA indicates that “transplantation” under the UAGA refers to taking organs and tissue from a donor and placing them in recipients whose equivalent organs or tissue are damaged or otherwise lacking, thus “sav[ing] or enhanc[ing] the lives of those in need.” Implanting a decedent’s gametic material in a spouse, not for the purpose of replacing damaged tissue, but to conceive a child, does not constitute “transplantation” for purposes of the UAGA.

The Donor’s Intent Controls The Disposition of His Sperm

Because the plaintiff was unable to rely on her status as the surviving spouse under California law to claim entitlement over her deceased husband’s sperm for posthumous conception, she was required to establish that it was her husband’s intent that she do so.

Two California cases (prior to this one) address the postmortem disposition of stored sperm: Hecht v. Superior Court (1993) 16 Cal.App.4th 836 (Hecht), and Estate of Kievernagel (2008) 166 Cal.App.4th 1024 (Kievernagel).  In both Hecht and Kievernagel, the courts were able to determine the donor’s intent from written documents that specifically addressed the disposition of the sperm upon death.  Here, Aaron left no instructions regarding his sperm.  The court stated:

It would be unreasonable to presume that Aaron, and the vast majority of persons who have not left instructions for the disposition of their gametic material upon death, thereby intended to cede their procreational autonomy to their spouses or next of kin. The more reasonable presumption, and the one we adopt here, is that absent some affirmative indication to the contrary, a decedent did not intend his or her gametic material to be used for posthumous conception.

The California Probate Code Supports The Conclusion That The Deceased Husband’s Intent For His Sperm Must Be Established

The California Probate Code, section 249.5, supports the conclusion that the donor’s intent for the posthumous use of his sperm must be established.  Section 249.5 governs the “rights to property to be distributed upon the death of a decedent” to “a child of the decedent conceived and born after the death of the decedent.”  Under California Probate Code section 249.5, a child conceived and born posthumously “shall be deemed to have been born in the lifetime of the decedent, and after the execution of all of the decedent’s testamentary instruments” only if, among other things, “[t]he decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent.”

Therefore, California law does not recognize a child conceived and born posthumously as a child of the decedent unless there is an express indication in writing of an intent to allow the use of decedent’s genetic material for posthumous conception.  The court stated:

We recognize Probate Code section 249.5 governs the right of a child conceived posthumously to receive property from the decedent’s estate, not the right of a person to conceive the child in the first place. We need not, and do not, decide whether a spouse wishing to conceive with a decedent’s gametic material must first show the decedent complied with the specific requirements of Probate Code section 249.5. That statutory section, however, is consistent with our conclusion that a donor’s intent to allow the use of his or her gametic material for posthumous conception may not be presumed from the donor’s silence, but must be affirmatively shown.

The operative complaint filed by Plaintiff did not contain sufficient allegations of intent to survive demurrer.  In the complaint, Plaintiff alleged that Aaron always desired to have children with her, and letters or cards that had been written by Aaron prior to his stroke wherein he expressed his desire to have children with his wife.  These statements, without more, were deemed insufficient as a matter of law to allege that Aaron contemplated, much less sanctioned, using his sperm for posthumous conception.

No Entitlement to Use The Sperm = No Claim For Tort Damages

The determination that plaintiff was not entitled to conceive a child with Aaron’s sperm impacted the tort claims brought by plaintiff, specifically those claims based on the loss of the opportunity to conceive a child using the sperm.  Absent an entitlement to use Aaron’s sperm for posthumous conception, plaintiff failed to state any claim for tort damages.  “[P]laintiff was not legally entitled to use Aaron’s sperm to conceive a child, even if defendants had not lost the sperm. Thus, her position that defendants deprived her of that opportunity is without merit…”  The court further stated:

“Sperm has no value if it cannot actually be used.” Thus, the question of whether plaintiff is legally entitled to use the sperm is directly relevant to whether defendants caused her any damages. Plaintiff has failed to allege facts establishing that she legally could use the sperm to conceive a child. Defendants thus could not cause her harm by depriving her of an opportunity she did not have.

Plaintiff was also unable to state a claim for emotional distress resulting from the storage facility’s loss of Aaron’s sperm, for the same reasons that her other tort claims failed.  Plaintiff was not entitled to damages for emotional distress based on the loss of an opportunity she never had.

In sum, under California law the donor’s intent controls the disposition of his sperm upon death.  Failure to establish or allege that the husband intended his wife to conceive a child with his sperm posthumously, the wife’s action could not proceed.



Andrew S. Gold, Esq.

Probate & Trust Litigation

Hourly & Contingency Fees Available

(650) 450-9600