Cite as B292448
Filed May 1, 2020, Second District, Div. One.
By Daniel C. Kim
Weintraub Tobin Chediak Coleman Grodin Law Corporation
Headnote: Posthumous use of gametic material.
Summary: A decedent’s intent governs disposition and posthumous use of his or her stored gametic material.
Sarah Robertson’s husband, Aaron Robertson, died of a rare genetic disorder at the age of 29. Shortly before his death, while he was in a coma, Sarah arranged for extraction of his sperm in hopes of one day conceiving a child with it. Ten years later, when Sarah sought to use the sperm for conception, the storage facility could not locate it. Sarah brought suit asserting contract and tort claims based on the loss of her ability to have a child biologically related to her deceased husband. The trial court sustained demurrers to the tort causes of action concluding, inter alia, that plaintiff was not legally entitled to use her husband’s sperm for posthumous conception and, therefore, suffered no injury from its loss. Similarly, the court held that Sarah could not recover damages for emotional distress or loss of fertility interest under her breach of contract cause of action. Sarah appealed.
The court of appeal affirmed. The facts pled were insufficient to show that Aaron intended for his sperm to be used for posthumous conception. Under California law, a donor’s intent governs disposition of stored gametic material at the time of the donor’s death. Absent affirmative indication to the contrary, a decedent is presumed not to intend the posthumous use of his or her gametic material for conception. Sarah was not entitled to conceived with Aaron’s sperm simply because she was his spouse or because he had expressed desires to conceive with her during his life. The only allegations pled were Sarah’s representations to Aaron’s physicians that Aaron “always wanted to have children” with her. These comments were held insufficient as a matter of law to allege that Aaron intended for posthumous use of his sperm for conception.