California Appeals Court: Deceased Husband’s Sperm has no Value if it Cannot Actually be Used

After her husband fell into an irreversible coma, a woman had his sperm extracted and stored at a tissue bank in hopes that she could one day conceive a child biologically related to him. 10 years after he died, the woman requested the sperm. The tissue bank could not find it, and the woman sued them, asserting contract and tort claims under California law. The trial court found in Robertson v. Saadat that the woman suffered no injury because she had no right to use the sperm to conceive a child. The woman appealed.

The California Court of Appeal, Second District, affirmed the trial court’s decision. Sperm is not governed by the rules that apply to gifts or personal property, and as gametic material, it must be specifically mentioned in testamentary documents. “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.” Furthermore, the husband had no knowledge of the sperm extraction before his death, and therefore had no “‘decisionmaking authority as to the use of [the gametes] for reproduction.’”

The court also rejected the woman’s argument that the sperm fell under the Uniform Anatomical Gift Act (UAGA) as the sperm would be “transplanted” into her. The 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, not to conceive a child.

Because the woman could not prove that she was entitled to use the deceased husband’s sperm as his surviving spouse, she had to show that it had been his intent to allow her to conceive with the extracted sperm. There must be an express indication in writing of an intent to allow the use of decedent’s genetic material for posthumous conception. The husband did not leave such writing, so there was no express intent.

With no intent nor entitlement to use the sperm, there was no value to the sperm, and the woman could not claim emotional distress caused by the inability to conceive the husband’s child.

See California Appeals Court: Deceased Husband’s Sperm has no Value if it Cannot Actually be Used, Probate Stars, May 11, 2020.