48 Cal.App.5th 630
Cal. Ct. App.2020Background:
- In 2004 Aaron Robertson (decedent) suffered a stroke, fell into a coma, and plaintiff (his wife) arranged for extraction and cryostorage of his sperm; Aaron did not expressly consent to extraction or posthumous use.
- The sperm was initially stored at Tyler Medical Clinic; the clinic and its tissue bank were later acquired by defendants (Saadat and corporate entities); plaintiff paid annual storage fees.
- In 2014–2015 plaintiff requested transfer of the six vials; defendants reported only one vial could be located and later said none of the vials belonged to Aaron.
- Plaintiff sued for professional negligence, breach of contract, negligent and intentional infliction of emotional distress, fraud, conversion, and statutory claims; the trial court sustained demurrers to tort claims and limited recoverable contract damages to storage fees.
- The Court of Appeal affirmed, holding under California law donor intent controls postmortem disposition of gametes and plaintiff failed to plead facts showing Aaron intended posthumous conception; therefore tort and emotional-distress damages based on loss of the opportunity to conceive failed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to use deceased spouse's sperm for posthumous conception | As Aaron's spouse and next of kin Robertson should be entitled to use his sperm | Donor's intent controls disposition of gametic material; spouse status alone does not authorize posthumous use | Donor intent governs; spouse status alone does not entitle plaintiff to posthumous use |
| Effect of absent written instructions (presumption of consent) | Silence or lack of contrary instruction should not preclude use; UAGA/intestacy permit spouse decisions | Silence does not imply consent; Probate Code and precedent require affirmative evidence of donor's intent for posthumous conception | Court presumes no posthumous-use consent from silence; affirmative donor intent required |
| Whether loss of stored sperm supports tort damages (emotional distress, negligence, fraud) | Loss of the opportunity to conceive with Aaron's sperm causes economic and severe emotional harm, supporting tort claims | Without legal entitlement to use the sperm plaintiff suffered no cognizable tort injury beyond storage fee loss | Because plaintiff failed to allege entitlement to use the sperm, she lacked cognizable tort damages; tort claims dismissed |
| Recoverability of emotional-distress damages on breach-of-contract claim | Storage facility should foresee mental suffering from losing a widow's deceased husband's sperm; emotional-distress damages are recoverable | Contract was for storage only; emotional-distress damages cannot be recovered where plaintiff never had legal right to use the sperm | Emotional-distress damages disallowed here; breach-of-contract damages limited to direct storage losses |
Key Cases Cited
- Hecht v. Superior Court, 16 Cal.App.4th 836 (1993) (sperm is unique estate asset; probate jurisdiction and donor intent central to disposition)
- Estate of Kievernagel, 166 Cal.App.4th 1024 (2008) (donor's intent controls postmortem disposition of single-donor gametes; signed storage agreement enforcing discard defeated widow's claim)
- Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (principle that gamete/providers' decisional authority should control disposition; balancing test for preembryo disputes)
- Vernoff v. Astrue, 568 F.3d 1102 (9th Cir. 2009) (interpreting California law on posthumous-conception evidence; absence of consent undermined survivor-benefits claim)
- Windeler v. Scheers Jewelers, 8 Cal.App.3d 844 (1970) (emotional-distress damages may be recoverable for breach of bailment when special circumstances are known)
- Allen v. Jones, 104 Cal.App.3d 207 (1980) (mortuary's loss of remains may justify emotional-distress recovery because severe mental distress is foreseeable)