Robertson v. Saadat (May 1, 2020, No. B292448) __ Cal.App.5th __ [2020 WL 2109682]
Aaron Robertson entered into an irreversible coma due to a rare genetic disease. Prior to his death, Aaron’s sperm was extracted and stored in defendants’ tissue bank. When his wife, Sarah, requested the sperm 10 years later, the tissue bank was unable to locate it. Sarah sued the tissue bank for depriving her of the opportunity to have a child biologically related to her deceased husband. The trial court sustained demurrers, ruling that Sarah was not legally entitled to use her husband’s sperm for posthumous conception and, accordingly, suffered no injury.
The Court of Appeal affirmed. First, the court held that Sarah’s status as Aaron’s widow did not entitle her to conceive using his sperm. The court reasoned that, because sperm is unique and not governed by general laws relating to gifts, the donor’s intent (not a plaintiff’s status) controls its disposition. Absent affirmative indications to the contrary, courts will presume that a decedent did not intend his or her gametic material to be used for posthumous conception. Sarah’s allegations that Aaron had expressed a desire to have children with her failed as a matter of law to evince consent to posthumous conception. The court also rejected Sarah’s argument that “transplantation” under the Uniform Anatomical Gift Act included conception. The court concluded the Act is limited to replacing damaged or lacking organs and tissue. Absent any entitlement to use Aaron’s sperm for posthumous conception, Sarah had no cognizable tort or contract damages based on her inability to conceive.
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
California Society for Healthcare Attorneys
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