The Right to Create Grandchildren After the Death of a Child

Can someone create your biological child after your death? The Appellate Division, First Department, answered this question in the negative in Speranza v Repro Lab Inc., 2009 NY Slip Op 01543 (1st Dept. March 3, 2009).

In 1997, Mark Speranza deposited a number of semen specimens in the facility of Repro Lab, Inc., a tissue bank licensed by the State of New York. The specimens were frozen and stored in the defendant’s liquid nitrogen vaults. Mark was about to undergo treatment for an illness and was concerned about being able to conceive a child afterward. As part of his agreement with Repro Lab, he filled in and signed a form document entitled, “Ultimate Disposition of Specimens,” which contained several options for the disposition of the specimens by the tissue bank in the event of Mark’s death. One option on the form directed that the specimens be given to the depositor’s spouse, another directs that the samples be destroyed, and a third option, with the heading “Other,” leaves a blank to be filled in. Mark checked off the provision stating that in the event of his death, “I authorize and instruct Repro Lab to destroy all semen vials in its possession.” The document concluded with the statement that “[t]his agreement shall be binding on the parties and their respective assigns, heirs, executors, and administrators.” Six months later, on January 28, 1998, Mark died.

Mark’s parents were named administrators of his estate, and they contacted Repro Lab about the specimens. They were then informed that Mark had deposited the specimens for his use only, in that the specimens were not screened as required for donation to a member of the public. Mark’s parents then began to seek a surrogate mother to be artificially inseminated with those semen specimens, with the hope of producing a grandchild for them. In 2005, the Speranzas contacted Repro Lab to ascertain the procedure for obtaining the specimens and were informed that the lab could not turn over the specimens. Plaintiffs, in their position as administrators of their son’s estate, then commenced an action seeking a declaration that the estate is the rightful owner of the specimens.

In its decision, the Appellate Division held that public policy interests, as well as New York law, preclude giving plaintiffs possession of the specimens for purposes of engendering Mark’s biological child, their grandchild, with the sperm he left behind.

The Court relied upon the regulations of the New York State Department of Health in deciding this case. These regulations define two distinct categories of semen depositors with tissue banks: depositors and donors. A “client-depositor” is “a man who deposits reproductive tissue prior to intended or potential use in artificial insemination or assisted reproductive procedures performed on his regular sexual partner” (10 NYCRR 52-8.1[d]). A “donor” is “a person who provides reproductive tissue for use in artificial insemination or assisted reproductive procedures performed on recipients other than that person or that person’s regular sexual partner, and includes directed donors” (10 NYCRR 52-8.1[f]). A “directed donor” by definition “includes a man providing semen to a surrogate, but who is not the regular sexual partner of the recipient” (10 NYCRR 52-8.1[e]).

The regulations contain extensive screening and testing requirements that apply to “donors” only, and not to “depositors” (10 NYCRR 52-8.5, 52-8.6). This required screening and testing is deemed unnecessary by the regulations only when, at the time of the deposit, the specimen was intended to be used only by the depositor or his regular sexual partner. Any other potential recipient, including a surrogate who was not the regular sexual partner of the donor, is included among those intended to be protected by these regulations, which strictly mandate thorough testing before any such use.

The regulations also contain very particularized provisions for the manner in which a tissue bank must treat deposited reproductive tissue, and require the informed consent of a tissue donor, including a statement that the donor has the right to withdraw his or her consent to donation up until a specified point in the assisted reproduction process (10 NYCRR 52-8.7, 52-8.8[a][6]).

Relying on the regulations, Repro Lab pointed out that Mark, as a “client depositor” rather than a “donor,” had not been examined and screened as directed by 10 NYCRR 52-8.5, and that his blood and semen had not been tested for the infectious diseases covered in 10 NYCRR 52-8.6; rather, his specimens were simply stored without any medical screening or testing. Therefore, the tissue bank could not properly release the specimens for insemination of a surrogate.

Notwithstanding the regulations, Mark’s parents sought to either reform or terminate Mark’s agreement with the lab so as to eliminate the applicability of the directive that the specimens be destroyed or to otherwise claim a legal right to ownership of the specimens. According to the court, the parents had no viable cause of action that would entitle them to take possession of the specimens for insemination of a surrogate to produce the child he did not create while he lived.

The court further held that the contract between Mark and Repro Lab could not be reformed since it was clear and unambiguous, finding that it represented his choice that the sperm should be available to him so he could protect his ability to procreate if he survived. It did not protect any possibility that his genetic or biological issue could be created after his death, and the directive that his semen be destroyed in the event of his death precluded such a possibility. Under applicable regulations as well as the terms of the contract between Mark and Repro Lab, the specimens were not assets of the estate over which the administrators had possessory rights.

The legal obligations with regard to the possession and handling of the semen specimens were dictated solely and completely by the applicable Department of Health regulations. The proposed use of Mark’s semen would fundamentally violate 10 NYCRR 52-8.6(g), which requires that a semen donor be “fully evaluated and tested” prior to the use of his semen “by a specific recipient, other than his current or active regular sexual partner.”

This decision further illustrates the need to pre-plan in situations where one’s health may impact future reproductive activities. While I sympathize with Mark’s parents, the court had to follow the regulations and enforce the contract.

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