Metropolitan News-Enterprise


Monday, May 4, 2020


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Woman Had No Cause of Action Based on Loss of Late Husband’s Sperm—C.A.

Liability Would Only Exist If the Man Had Expressly Consented To His Becoming a Father Posthumously, Bendix Declares


By a MetNews Staff Writer


An action by a woman against a doctor, a fertility clinic and a laboratory based on losing the frozen sperm of her late husband was properly dismissed because the plaintiff did not allege consent by the decedent to fertilization after his death, the Court of Appeal for this district held Friday.

Justice Helen Bendix of Div. One wrote the opinion. It affirms a judgment by Los Angeles Superior Court Judge Barbara Ann Meiers.

Plaintiff Sarah Robertson had a hospital extract the sperm of her husband, Aaron Robertson, after he went into a coma, shortly before dying. The woman delayed 10 years in seeking to become pregnant, wanting first an assurance that medical technology had advanced to the point the genetic disease causing the death would not be inherited by the child.

Allegations Insufficient

Bendix wrote:

“California law, the donor’s intent controls the disposition of his or her gametic material upon death. The only allegations regarding plaintiff’s husband’s intent were that plaintiff, at the time she requested her husband’s sperm be extracted, represented to his physicians that she and her husband had always wanted to have children together, and provided letters and cards written by her husband similarly indicating a desire to have children with his wife. Although those allegations, if true, would establish that the husband wished to have children with his wife while he was alive, they fail as a matter of law to establish that the husband intended his wife to conceive a child with his sperm posthumously.”

She said the facts set forth in the complaint “are insufficient to show that Aaron, who did not consent to the extraction of his sperm, intended that sperm to be used for posthumous conception,” adding:

“Absent an entitlement to use Aaron’s sperm to conceive a child, plaintiff’s tort causes of action necessarily fail.”

Bendix specified:

“Given our conclusion, we need not and do not decide whether plaintiff was entitled to extract and store Aaron’s sperm in the first place, nor do we decide whether plaintiff had any interest in or entitlement to the sperm for purposes other than posthumous conception.”

Breach of Contract

The plaintiff contended:

“A plaintiff may recover emotional distress damages resulting from a defendant’s breach of a contract when the defendant has reason to know that, by the nature of the subject matter of the contract, a breach would result in mental suffering by the plaintiff.”

Bendix responded:

“Plaintiff’s argument again is premised on her position that defendants’ alleged misconduct destroyed her opportunity to have a child biologically related to her husband. Her argument fails for the same reason her arguments in favor of her tort causes of action… fail—plaintiff was not legally entitled to conceive a child posthumously with Aaron’s sperm in the first place. Again, plaintiff fails to explain how she is entitled to damages for emotional distress based on the loss of an opportunity she never had.”

The case is Robertson v. Saadat, B292448.


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