Estate Administration, Sperm Donation & “Sleazy Labs”?

March 11, 2009

semen-storageThe New York Law Blog reported on the recent case of  Speranza v Repro Lab Inc., which was decided  by the Appellate Division, First Department, on March 3rd.

In this case, a man, Mark Speranza, deposited several semen samples with Repro Lab in advance of a medical treatment that he had reason to suspect might affect his ability to have children. In his contract with the lab, he directed that in the event of his death, the samples should be destroyed. Unfortunately, he passed away and his parents became the administrators of the estate. They paid the lab’s storage fees and sued to have the Court order the Lab  to release the sperm to them so that they could implant it into a surrogate mother and have a grandchild.

The Court found that such a result would violate NY health law, which mandates extensive testing for sperm that will be implanted in someone other than the regular partner of the sperm donor. Also, the Court found that Mark’s contract with the lab was very clear and that the lab was bound to honor that contract by destroying the sperm.

I am certainly very sympathetic to the parents’ position. Most of us cannot imagine that grief felt by parents who have lost a child. One can also imagine that the parents would want to see some continuity of their child’s life through a grandchild. But such a thing is nevertheless unhealthy on so many levels.

First, as a matter of public policy, it is wrong to make someone into a parent against their express will and without their consent, as  Mark’s parents understandably wished to do.

Second, the result Mark’s parents were suing for violates Mark’s freedom of contract. The fact that his parents had an extremely strong desire for a result different from what their son desired does not give them the right to vitiate the terms of Mark’s contract with Repro Lab.

New York Legal Update commented that it was “sleazy” of the lab to accept the storage fees from the parents while they litigated the matter with them.  They argue that they should have just destroyed the sperm right away upon Mark’s death, as per the contract. I disagree for two reasons.

One, the lab had no way of knowing that Mark’s parents would not be successful in obtaining a court order that Repro turn over the sperm. Once they destroy the sperm it is too late to go back. The lab could have been more concerned about covering its own behind in case the parents won, than about quickly fulfilling their part of the contract with Mark. Thus, I think they could have seen discretion as the better part of valor and decided to sit tight with the sample in storage until the courts settled on an answer to the question.

Second, I doubt that they were cynically pocketing the storage money for profit. Repro was a named party in the law suit and I have no doubt that their legal fees in this matter far exceeded any storage fees they received from Mark’s parents. Thus, the lab probably suffered a major loss, despite receiving the storage fees. So I see the lab’s behavior more as a way of trying to avoid liability than some kind of money-grabbing scheme.

Picture courtesy of

2 Responses to “Estate Administration, Sperm Donation & “Sleazy Labs”?”

  1. Jim Maloney Says:

    “Freedom of contract”? Wasn’t that the rallying cry of the now-discredited Lochner opinion? A lot of evils can be wrought under the rubric of freedom of contract: courts could strike down minimum wage and fair work-hour laws (essentially the result in Lochner), grants of real property could contain the most horrible and burdensome reverter provisions, and federal contract provisions that banks agree to today in exchange for federal bailout money could actually be enforced in a few years (horrors!).

    Also, under a “freedom of contract” theory, couldn’t a willing surrogate mom decide to take the risk with the sperm and conceive if she wanted to?

    I happen to agree with the decision, but not because of freedom of contract, or the wacky interpretation of “NY health law, which mandates extensive testing for sperm that will be implanted in someone other than the regular partner of the sperm donor,” and not because a different result would force a dead guy to become a parent. It’s more about the donor’s wishes. Still, it’s a close case. Two hypos:

    1) What if “the regular partner of the sperm donor” instead of the parents were asking for the sperm? Should that change the result. Why?

    2) What if it were frozen embryos and not sperm, but both parents of the embryos were dead, and both had indicated that their wishes were that the embryos be destroyed upon the death of both of them? If all four of the potential grandparents together brought an action to save the “life” of the embryos, should they win or lose?

    Fertile ground for a law school exam…

  2. Yes, fertile ground for a law school exam, but which subject? Family Law? Con Law? Health Law? 🙂

    Of course you’re right about your Lochner point. I certainly don’t have any problem with expunging contractual terms that are unconscionable or violate compelling public policies. But the government should only meddle in people’s contractual agreements when there is some compelling state interest involved.

    I think the reason you brought up how the result might be different if we were discussing a frozen embryo is because with frozen sperm alone, we’re not dealing with a discussion about whether destroying the sperm would be ending a life. Thus, I don’t see any major public policies that would indicate Mark’s contract with the lab shouldn’t be binding. Without the “life” factor in the mix, I see most legitimate state interests as arguing that the contract should be upheld.

    One reason is that people should not be turned into parents against their will. Another is that any other result gratuitously violates a legal contract. The reason you found most compelling was that the destruction of his sperm upon his death was what Mark, the donor wanted, and that his wishes should be upheld. But I don’t think that someone’s desire alone is enough without a contract. In general, people’s desires alone are not enough. Transactions are not binding between parties without contracts (oral or written). People’s testamentary wishes are not recognized unless formalized by a Last Will and Testament. And a couple’s desire to be married is not recognized by the state without a formal ceremony and license.

    But here, we had more than his wishes. We had a contract. And contracts between parties will become meaningless if the courts will vitiate their terms whenever someone comes along with a good reason why they think that this should be done. Unless someone can come up with a sound legal argument showing that a contract’s terms are either violative of public policy or unconscionable, there should be a very strong presumption in favor of upholding contracts.

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