Six months later, Mark died.
Mark's parents were named as administrators of his
estate, and contacted the lab about the specimens. The lab told them the
specimens were for Mark's use only, in that the specimens were not screened as
required by Department of Health regulations for donation to a member of the public. However, the lab agreed to
maintain the specimens while the parents explored legal options if the parents
continued to pay the yearly storage fee, which the the parents did.
The parents then began to seek a surrogate mother
to be artificially inseminated with the sperm so that they could have a
grandchild. They contacted the lab about
obtaining the sperm, but the lab informed them they could not turn over the
specimens, and it produced for the first time the document Mark signed
specifying that the specimens were to be destroyed upon his death. However, the lab continued to be willing to
maintain the sperm upon payment of the annual storage fee.
The parents then commenced a lawsuit, as
administrators of Mark's estate, seeking a declaration that the estate were the
rightful owners of the specimens. The
complaint alleged that by accepting yearly payments from them after Mark's
death, the lab breached and terminated its agreement with Mark, or waived or
relinquished any obligation it had to destroy the specimens, and the parents
became the rightful and proper owners of the specimens.
In denying the parents an injunction and declaring
that they had no rights to the sperm, the Court relied primarily on regulations
of the Department of Health. These
regulations defined 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]).
And 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]).
And 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 Court noted that the regulations contained
extensive screening and testing requirements that apply to "donors"
only, and not to "depositors" (10 NYCRR 52-8.5, 52-8.6). These screening and testing requirements
included testing blood and semen for infectious diseases in order to protect potential surrogate mothers. This required
screening and testing was 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, was included among those intended to be protected by these regulations, which
strictly mandate thorough testing before any use.
The lab argued, and the Court agreed, that Mark
was a "client depositor" rather than a "donor;" he had not
been examined and screened as directed by 10 NYCRR 52-8.5, and his blood and
semen had not been tested for the infectious diseases covered in 10 NYCRR
52-8.6. Thus, his specimens were simply
stored without any medical screening or testing. Therefore, the lab could not
properly release the specimens for insemination of a surrogate.
The Court also rejected the parents argument that Mark's contract with the lab should be either terminated or reformed so as to eliminate the contract's provision that the specimens be destroyed. The Court found that the agreement was clear and unambiguous. The Court stated:
[The parents'] assert that Mark's purpose in storing the sperm was to assure his ability to have a child. The contract, however, is not that vague. It represents a determined choice that the sperm should be available to him so he could protect his ability to procreate if he survived. It does not protect any possibility that his genetic or biological issue could be created after his death; indeed, the directive that his semen be destroyed in the event of his death precludes such a possibility. Since the document conveys a clear intent that the specimens be destroyed upon Mark's death, which intent is not contrary to the asserted intent to assure his ability to have a child while he was alive, it cannot be said that the instrument contains an erroneous expression of the intention of the parties. Accordingly, nothing in the [parents'] submissions would justify reforming the contract so as to permit them to fulfill their wish after his death, contrary to his express wishes.
The Court further rejected the claim the labs acceptance of the yearly storage fees entitled the parents to any possessory rights.
Commentary:
The lab should have clearly destroyed the specimens upon Mark's death. Accepting the storage fees from the parents was just sleazy if it knew that it could not turn over the specimens because of Department of Health regulations, and was contractually bound to destroy them. As for the parents, one also has to question their desire for genetic survival.
Great summary. I wrote up a bit about this case and your analysis too here: http://schlissellaw.wordpress.com/2009/03/11/estate-administration-sperm-donation-sleazy-labs/
All the best
Posted by: Benjamin Wolf | March 11, 2009 at 10:14 AM