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.

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February 4, 2009