On May 1, 2020, the California Court of Appeals issued its ruling in Robertson v Saadat. The case arose from an unusual fact pattern, which, if you’re a regular reader of this column, is a phrase that you’re probably getting used to me saying.
A grieving widow had been prevented from using her husband’s sperm after the sperm bank where it was stored admitted that it “could not locate” the sperm. … Record scratch. Wait, where did the sperm go?
Let’s back up for a moment. All the way to simpler times, in 2004.
The widow in the case is Sarah Robertson, who lost her husband, Aaron Robertson, in 2004. Aaron Robertson died from complications related to a rare genetic condition called Marfan Syndrome. Before Aaron passed away, and while he was unconscious in a coma, Robertson requested that her husband’s sperm be retrieved and cryopreserved, for possible future use to start a family.
That’s not as strange as it might sound to some people. The couple had deeply hoped to have children together. And Robertson thought that some day, technology would advance to the point where doctors could screen embryos for Marfan Syndrome, so the condition would not be passed along. A UCLA Medical Center ethics panel reviewed the case, approved it, and went ahead and conducted the retrieval for Robertson’s requested use. Six vials were transferred for storage to Tyler Medical Center, an entity that was later purchased by Dr. Peyman Saadat.
Ten years later, in 2014, Robertson sought fertility treatment. So she asked that Saadat transfer the vials — which she had been paying storage fees on for 10 years — to UCLA Medical Center. That’s when she learned there was an issue. First, the clinic claimed that the vials were destroyed in a fire. Except the fire had occurred more than a year prior to when the bank even received the vials in the first place. When that excuse fell, the clinic looked a little harder, now claiming that they couldn’t locate five of the six vials. But the seemingly good news was that they had located one vial. Great! At least there was one.
But things kept going south. Per the complaint, Saadat then “made repeated and unsolicited efforts to coerce and intimidate Plaintiff to allow him” to perform the fertility treatment instead. That’s aggressive behavior for a medical clinic. According to Robertson, when she insisted that no, she wanted the vial transferred to UCLA, the clinic responded by saying that actually, the one vial that they *thought* was her husband’s sperm was actually not, and instead was just a different patient’s sperm who had the same first name as her deceased husband, Aaron. Oh wow.
Unsurprisingly, plaintiff alleges that the clinic never found that one last vial of her husband’s sperm, “and instead intended to impregnate her with sperm from another donor.” I mean, these are just the allegations in the complaint. But yeah, that’s definitely an inference someone could make.
Did the Clinic Impregnate Other Patients With Robertson’s Husband’s Sperm?
Robertson further alleged that defendants used her husband’s sperm to impregnate other patients of the clinic, without those patients’ knowledge or consent. If that’s true, says Robertson, there could be disastrous consequences, since those children might have inherited her husband’s genetic condition.
But the court dismissed this accusation, concluding that the clinic’s misuse of her husband’s sperm had no bearing on plaintiff’s damages, and that plaintiff has no standing “to assert claims on behalf of those women.” So for the time being, the clinic is off the hook for other possible misconduct.
No Legal Right To Use The Sperm.
Despite the UCLA ethics board’s decision to approve Robertson’s request for her husband’s sperm, the Court nevertheless concluded that California State law requires that the gametic provider create a formal writing of their intent to provide sperm or eggs to be used for conception after their death. And while UCLA found the letters and other evidence of the husband wishing to have children with his wife sufficient, the Court found that they were not relevant, as they did not specify his intent for his sperm to be used after his death.
California’s Court of Appeals decision is out of step with other recent judicial thinking on posthumous conception. Last year in Massachusetts, a court was willing to support the parents’ request for a retrieval after their son, a West Point cadet, died in a ski accident. The court in the Zhu case relied on the evidence of the deceased’s general wish for children expressed during his life.
I touched base with Reproductive Negligence and Birth Rights and Wrongs author Dov Fox on the ruling. Prof. Fox points out that the court skipped over the hard questions about how to define Robertson’s loss or how to value her husband’s missing sperm. Instead, it focused on the lack of written pre-death consent. The judges thought it more reasonable to presume “that absent some affirmative indication to the contrary, a decedent did not intend his or her gametic material to be used for posthumous conception.” Fox says he could see where they’re coming from … if the husband hadn’t died so suddenly, or if it were anything like normal to write this stuff down. But it’s not — for now, at least. Who leaves instructions about what their spouse should do with their sperm or eggs if they die without warning? Under these circumstances, Fox thinks it’s more reasonable to reverse the default: absent contrary evidence, trust the next of kin to say what their loved one would have wanted. That’s why Fox thinks the court got it wrong.
I also connected with Robertson’s attorney, litigator, and reproductive law expert Dean Masserman. Masserman noted that they conceded from the beginning that while it was clearly evidenced that the deceased had wanted children with his wife, nowhere did he write down his post-death intention for his sperm. Masserman explained that California law is flawed. While a presumption exists for a spouse to have control over a deceased spouse’s tissue and gametes, it then fails to include the presumption of use. Masserman had hoped that the Court of Appeals would take the opportunity to look beyond technicalities and fix the law. And, more importantly, recognize that a wrong needed to be righted.
So, will we see an appeal to the California Supreme Court? Stay tuned.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.