DIANE L. JOHNSON et al., Petitioners, v. THE SUPERIOR
COURT OF LOS ANGELES COUNTY, Respondent; CALIFORNIA CRYOBANK,
INC., et al., Real Parties in Interest.
COURT OF APPEAL
OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
App. 4th 1050; 2000 Cal. App. LEXIS 390; 95 Cal. Rptr. 2d 864;
2000 Cal. Daily Op. Service 3918; 2000 Daily Journal DAR 5242
May 18, 2000, Decided.
Opinion by Mallano, J.,
Petitioners Diane L. Johnson and Ronald G. Johnson, along with
their minor daughter Brittany L. Johnson, filed an action against
real parties in interest, California Cryobank, Inc., Cappy M. Rothman,
M.D., and Charles A. Sims, M.D., claiming that real parties failed
to disclose that the sperm they sold came from a donor with a family
history of kidney disease called Autosomal Dominant Polycystic
Kidney Disease (ADPKD). That sperm was used to conceive Brittany
who has been diagnosed with this serious kidney disease. When petitioners
sought to take the deposition and obtain documents of John Doe,
the person believed to be the anonymous sperm donor, real parties
(including John Doe) filed motions to quash the deposition subpoena.
At the same time, petitioners filed a motion to compel compliance
with the deposition subpoena. The trial court denied petitioners'
motion and granted the motions to quash the deposition subpoena.
By their petition, petitioners seek a writ of mandate directing
the superior court to vacate its order and issue a different order
compelling John Doe's deposition and the production of records.
The novel issue presented here is whether parents and their child,
conceived by the sperm of an anonymous sperm donor, may compel
the donor's deposition and production of documents in order to
discover information relevant to their action against the sperm
bank for selling sperm that they alleged transmitted ADPKD to the
child. As fully discussed below, we conclude that the alleged sperm
donor in this case must submit to a deposition and answer questions,
as well as produce documents, which are relevant to the issues
in the pending action, but that his identity should remain undisclosed
to the fullest extent possible.
FACTUAL AND PROCEDURAL HISTORY
The Second Amended Complaint
Petitioners sued Cryobank, as well as its employees, officers,
and directors, Doctors Sims and Rothman, for professional negligence,
fraud, and breach of contract. In their second amended complaint,
petitioners allege as follows. Diane and Ronald Johnson decided
to conceive a child through the use of a sperm donor upon the recommendation
of their infertility doctors. The Johnsons contacted Cryobank's
sperm bank facility in Los Angeles. Ultimately, Cryobank sold the
Johnsons frozen sperm specimens donated by donor No. 276. At or
near the time of sale, the Johnsons signed Cryobank's form agreement
that provided, in relevant part, that "Cryobank shall destroy
all information and records which they may have as to the identity
of said donor, it being the intention of all parties that the identity
of said donor shall be and forever remain anonymous."
At the time of their purchase, Cryobank assured the Johnsons that
the anonymous sperm donor had been fully tested and genetically
screened. The Johnsons' doctors then implanted the purchased sperm
in one of Diane Johnson's fallopian tubes. The procedure was successful
and Brittany was born on April 18, 1989. In May 1995, the Johnsons
were informed that Brittany was positively diagnosed with ADPKD.
As neither Ronald nor Diane Johnson has ADPKD or a family history
of the disease, it was donor No. 276 who genetically transmitted
ADPKD to Brittany. At the time donor No. 276 sold his sperm to
Cryobank in December 1986, Doctors Sims and Rothman at Cryobank
interviewed him and learned that the donor's mother and his mother's
sister both suffered from kidney disease and hypertension, and
the donor's mother suffered a 30 percent hearing loss before the
age of 60. The presence of multiple instances of kidney disease
coupled with hypertension and neurological disorders, such as deafness,
are red flag indicators of the presence of ADPKD in donor No. 276's
family, and thus, Cryobank and Doctors Sims and Rothman knew that
donor No. 276's sperm could be at risk of genetically transferring
Even though Cryobank knew of donor No. 276's family history of
kidney disease, none of this information was provided to the Johnsons
at or prior to the time they purchased the sperm specimens. Despite
this knowledge, Cryobank's staff falsely represented to the Johnsons
that the sperm they were purchasing was tested and screened for
infectious and genetically transferable diseases and safe to effectuate
their pregnancy. Cryobank failed properly to test and screen donor
No. 276 and conduct further investigation or testing of the donor
once they learned that he had a family history of kidney disease.
Cryobank answered, asserting several affirmative defenses to petitioners'
action, including comparative fault. Cryobank alleges that "persons
or parties not named [in] this action . . . may have contributed
to a certain degree to the injuries alleged to have been sustained
The Discovery Dispute
During the course of the action, petitioners propounded discovery
to Cryobank seeking information regarding donor No. 276, including
his name, address, and medical history. Cryobank objected to providing
any information regarding donor No. 276, claiming the donor's right
to privacy and his physician-patient privilege. Cryobank did, however,
produce two donor consent agreements that were in use at the time
donor No. 276 sold his sperm. Both of these agreements state that
the donor will be compensated for each sperm specimen, that he
will not attempt to discover the identity of the persons to whom
he is donating his sperm, and that his identity "will be kept
in the strictest confidence unless a court orders disclosure for
good cause . . . ." Cryobank also produced a document showing
that on September 6, 1991, Cryobank informed Diane Johnson that
donor No. 276 had been withdrawn from the donor program because "new
information on his family members . . . indicates that he is at
risk for kidney disease" and that a "few small cysts
were found" after performing a "renal ultrasound." Cryobank's
responses to interrogatories indicated that donor No. 276 had sold
320 deposits of his semen to Cryobank. Donor No. 276's agreement
with Cryobank indicated that he received approximately $ 35 per
semen specimen. Donor No. 276 thus received a total of $ 11,200
for his sperm.
Cryobank also produced documents to petitioners at the deposition
of Cryobank's genetic counselor, which included the following:
(1) a December 1986 donor profile chart indicating that donor No.
276's mother and aunt have or have had high blood pressure and
kidney disease and that his mother had experienced 30 percent deafness
before age 60, and (2) a May 1995 letter from Cryobank's genetic
counselor to Brittany's physician indicating that donor No. 276's
(a) maternal aunt, age 63, is affected with ADPKD and has had a
kidney transplant, (b) maternal grandmother died at age 49 of ADPKD
and heart failure, (c) mother, age 57, is affected with ADPKD and "currently
is in good health," and (d) sister, age 32, has been evaluated
for ADPKD and is "apparently not affected." The letter
indicated that donor No. 276 "is in good health" and "had
a renal ultrasound examination in June 1991" and "there
was no evidence of hydronephrosis of either the right or left kidney." The
May 1995 letter also enclosed a "pedigree" medical history
obtained from donor No. 276 in April 1991. None of the documents
produced identified the donor or any member of his family.
Petitioners moved to compel further responses to their discovery
requests regarding the identity and medical history of donor No.
276. They also moved to compel answers to questions asked of Cryobank's
genetic counselor regarding donor No. 276's identity and medical
history. Petitioners argued that they were entitled to have all
of donor No. 276's medical information in Cryobank's possession
and disclosure of donor No. 276's identity so that they could question
him directly because the information (1) was relevant to the issues
in the litigation, and (2) was necessary "as a predictor of
the medical fate of Brittany" and is "one of the most
reliable indicators of Brittany's future."
Petitioners submitted two declarations from Brittany's doctors
in support of their motion. One of the doctors stated that Brittany
has "cysts [on her kidneys] much larger than those reported
in the donor and clearly has a highly penetrant form of ADPKD.
. . . [S]he [will] likely progress much more rapidly than most
patients with ADPKD who don't develop cysts until their 4th or
5th decade of life." He expressed the "utmost concern" in "gaining
access to the Donor as well as members of his family to determine
which of the two known ADPKD genes exists in the family and has
been inherited by Brittany. This information is vital to my diagnosis
and treatment of Brittany and to her health and well-being." A
second doctor stated that donor No. 276's "family history
with ADPKD may portend the overall future course of the disease
in Brittany. Obtaining as much information as possible about the
Donor and his family's experience with ADPKD will provide an important
diagnostic tool in understanding and prognosticating the clinical
course of the disease in Brittany."
The trial court granted petitioners' motions and Cryobank filed
a petition for writ of mandate with this court. We summarily denied
the petition and Cryobank petitioned the Supreme Court for review.
The Supreme Court granted review and transferred the matter to
us with directions to vacate the order denying mandate and issue
an order directing the trial court to show cause why relief should
not be granted. As a result, we issued an alternative writ of mandate.
The trial court responded in August 1997 by vacating its order
granting petitioners' motion.
Subsequently, petitioners' counsel located real party in interest
John Doe, who they believe is donor No. 276. John Doe does not
admit that he is in fact donor No. 276. Petitioners served him
with deposition and trial subpoenas in September 1998.
Petitioners and John Doe, through his counsel, then negotiated
and signed a detailed and comprehensive stipulation in June 1999
concerning his testimony in the case. The stipulation would have
maintained the confidentiality of John Doe's identity and limited
his testimony at deposition and trial to (a) his involvement with
Cryobank and (b) his, as well as his family's, medical history
as it relates to ADPKD.
Prior to a September 1999 hearing at which petitioners asked the
trial court to approve the stipulation and enter a protective order,
John Doe submitted a declaration stating that he did not want his
deposition taken. In addition, Cryobank objected to the stipulation
and protective order and opposed any deposition of John Doe. The
trial court denied petitioners' request to approve the stipulation.
Because John Doe was now unwilling to have his deposition taken,
petitioners sent notice of their intent to proceed with the deposition
based upon the previously served deposition subpoena. The renotice
of the deposition required that John Doe appear at a deposition
and produce the following categories of records: (1) records concerning
John Doe's "involvement with . . . Cryobank"; (2) records
concerning John Doe's family's "affliction with [ADPKD], including
all known secondary health problems experienced by afflicted family
members"; (3) records concerning John Doe's "medical
health as it relates to symptomology of ADPKD"; (4) records
concerning "the date [John Doe] was first diagnosed as being
afflicted with [ADPKD]"; (5) records concerning John Doe's
communications with Cryobank "at any time after he was removed
as an active donor from their panel"; and (6) records concerning
John Doe which he would be entitled to inspect under California
When he failed to appear, petitioners moved to compel that John
Doe comply with the subpoena to attend his deposition and produce
the requested documents. Real parties in interest, including John
Doe, opposed the motion. In addition, Cryobank and John Doe moved
to quash the deposition subpoena. Prior to the hearing on the parties'
respective motions, the court ordered that John Doe's anonymity
be preserved pending the court's ruling on the motions.
On November 2, 1999, the trial court denied petitioners' motion.
The trial court ruled that John Doe had a privacy interest in remaining
anonymous, which was heightened by the confidentiality agreement
he signed with Cryobank, and that petitioners had not demonstrated
a compelling state interest that outweighs John Doe's right to
remain anonymous. The trial court further found that petitioners "have
access to other relevant and ongoing medical information, which
assists Brittany's health and well-being; it is unproven that John
Doe would provide any new 'insight' into the medical condition
during deposition." This petition followed.
… Here, real parties in interest contend that petitioners
may not depose John Doe because (1) the physician-patient privilege
protects all of his communications with Cryobank and its doctors,
(2) the Johnsons' agreement with Cryobank precludes disclosure
of the donor's identity, and (3) the constitutional right of privacy
protects his identity. We examine each of these contentions.
The Physician-Patient Privilege
Cryobank and Doctor Rothman contend that petitioners are not entitled
to John Doe's deposition, even if he is donor No. 276, because
all the communications between him and the physicians at Cryobank
are protected by the physician-patient privilege. We disagree.
Evidence Code section 994 provides that "the patient, whether
or not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between patient
and physician." The patient is the holder of the privilege.
(Evid. Code, § 993, subd. (a).) Here, the supposed patient,
John Doe, has not asserted the physician-patient privilege to preclude
his own deposition. But, because a physician has a duty to assert
the privilege whenever he or she is present and a privileged communication
is sought to be disclosed (Evid. Code, § 995), we determine
whether the privilege is applicable here.
In order for a party to invoke the physician-patient privilege
under Evidence Code section 994, there must be a patient. A "patient" is
defined under section 991 as "a person who consults a physician
or submits to an examination by a physician for the purpose of
securing a diagnosis or preventative, palliative, or curative treatment
of his physical or mental or emotional condition." Therefore,
if a person does not consult a physician for diagnosis or treatment
of a physical or mental ailment, the privilege does not exist.
( Kizer v. Sulnick (1988) 202 Cal. App. 3d 431, 439 [248 Cal. Rptr.
712] [persons were not patients when they consulted with a physician
as part of a study to determine whether residents shared similar
medical complaints to determine further whether the presence of
a waste facility was the cause of these symptoms because purpose
was not to obtain a diagnosis]; see also In re Tabatha G. (1996)
45 Cal. App. 4th 1159, 1168 [53 Cal. Rptr. 2d 93] [person
submitting herself to bonding study to determine whether termination
of parental rights should be ordered was not a patient]; People
v. Cabral (1993) 12 Cal. App. 4th 820, 828 [15 Cal. Rptr. 2d 866]
[because appellant's "dominant purpose" was not to obtain
treatment, but to achieve probation, privilege did not apply].)
The party asserting the privilege has the burden of proof regarding
the existence of the privilege. ( Kizer v. Sulnick, supra, 202
Cal. App. 3d at p. 439.)
Real parties in interest have failed to demonstrate that the physician-patient
privilege is applicable in this case. The evidence presented to
the trial court revealed that donor No. 276 visited Cryobank for
the sole purpose of selling his sperm. That he consulted with Cryobank's
physicians and medical personnel as part of the process of donating
his sperm does not change the dominant purpose for his visit. There
was no evidence presented to the trial court that donor No. 276
visited Cryobank "for the purpose of securing a diagnosis
or preventative, palliative, or curative treatment of his physical
or mental or emotional condition." Thus, we conclude that
the physician-patient privilege has no application here.
John Doe's Status as Third Party Beneficiary
John Doe next claims that petitioners are not entitled to discover
his identity because their contract with Cryobank prohibits it.
John Doe argues that petitioners' agreement with Cryobank providing
that the sperm donor's identity would never be disclosed was made
for his benefit and thus, as a third party beneficiary, he is entitled
to keep his identity confidential as the agreement requires. While
we agree that John Doe is a third party beneficiary, we disagree
that the agreement precludes disclosure of his identity or related
information under any circumstance.
1. John Doe Is a Third Party Beneficiary
"Under California law third party beneficiaries of contracts
have the right to enforce the terms of the contract under Civil
Code section 1559 [**23] which provides: 'A contract,
made expressly for the benefit of a third person, may be enforced
by him at any time before the parties thereto rescind it.' " (
Harper v. Wausau Ins. Co. (1997) 56 Cal. App. 4th 1079, 1086 [66
Cal. Rptr. 2d 64].) The promise in such a situation is treated
as having been made directly to the third party. ( Outdoor Services,
Inc. v. Pabagold, Inc. (1986) 185 Cal. App. 3d 676, 681 [230 Cal.
Rptr. 73].) The third party need not be identified by name. It
is sufficient if the third party belongs to a class of persons
for whose benefit the contract was made. ( Principal Mutual Life
Ins. Co. v. Vars, Pave, McCord & Freedman (1998) 65 Cal. App.
4th 1469, 1485 [77 Cal. Rptr. 2d 479].) It is not necessary, however,
that the contract be exclusively for the benefit of the third party;
he need not be the sole or primary beneficiary. ( COAC, Inc. v.
Kennedy Engineers (1977) 67 Cal. App. 3d 916, 920 [136 Cal. Rptr.
890]; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 665,
"A third party may qualify as a beneficiary under a
contract where the contracting parties must have intended to benefit
that third party and such intent appears on the terms of the contract.
[Citation.] . . . [P] . . . Whether a third party is an intended
beneficiary or merely an incidental beneficiary to the contract
involves construction of the parties' intent, gleaned from reading
the contract as a whole in light of the circumstances under which
it was entered. [Citation.]" ( Jones v. Aetna Casualty & Surety
Co. (1994) 26 Cal. App. 4th 1717, 1724-1725 [33 Cal. Rptr. 2d 291].)
In this case, the Johnsons promised in their contract with Cryobank
that they would, among other things, "not now, nor at any
time, require nor expect [Cryobank] to obtain or divulge . . .
the name of said donor, nor any other information concerning characteristics,
qualities, or any other information whatsoever concerning said
donor." The Johnsons further agreed "that, following
the said insemination, [Cryobank] shall destroy all information
and records which they may have as to the identity of said donor,
it being the intention of all parties that the identity of said
donor shall be and forever remain anonymous." The agreement
bound the Johnsons as well as their heirs and assigns.
We conclude that the Cryobank agreement with the Johnsons expresses
the clear intent of both the Johnsons and Cryobank that the donor's
identity and related information would be kept confidential and
that such intent was for the benefit of all parties, including
the donor. Our conclusion is further supported by Diane Johnson's
testimony at her deposition in this case where she stated it was
her intent by executing the Cryobank agreement that the donor's
identity would not be disclosed to her and that her identity would
not be disclosed to the donor. While John Doe or Donor No. 276
are not specifically named in the agreement, it is clear that he
belongs to the class of persons--Cryobank sperm donors--who are
to benefit from the agreement's confidentiality provisions.
But, our analysis does not end here. We must determine whether
the Cryobank agreement with the Johnsons is contrary to an express
provision of law, the policy of express law, or public policy and,
hence, unenforceable. (Civ. Code, § 1667 [**26] ;
Metropolitan Creditors Service v. Sadri (1993) 15 Cal. App. 4th
1821, 1825-1826 [19 Cal. Rptr. 2d 646] [contracts contrary to public
policy are unlawful and unenforceable].) We conclude for the reasons
stated below, that the Cryobank agreement goes too far in precluding
disclosure of the donor's identity and related information under
all circumstances and thus conflicts with public policy.
2. Cryobank's Agreement Conflicts with Public Policy
Family Code section 7613 provides: "(a) If, under the supervision
of a licensed physician and surgeon and with the consent of her
husband, a wife is inseminated artificially with semen donated
by a man not her husband, the husband is treated in law as if he
were the natural father of a child thereby conceived. The husband's
consent must be in writing and signed by him and his wife. The
physician and surgeon shall certify their signatures and the date
of the insemination, and retain the husband's consent as part of
the medical record, where it shall be kept confidential and in
a sealed file. However, the physician and surgeon's failure to
do so does not affect the father and child relationship. All papers
and records pertaining to the insemination, whether part of the
permanent record of a court or of a file held by the supervising
physician and surgeon or elsewhere, are subject to inspection only
upon an order of the court for good cause shown. [P] (b) The donor
of semen provided to a licensed physician and surgeon for use in
artificial insemination of a woman other than the donor's wife
is treated in law as if he were not the natural father of a child
thereby conceived." (Italics added.)
Civil Code former section 7005, which Family Code section 7613
continued without substantial change, was part of the Uniform Parentage
Act approved in 1973 by the National Conference of Commissioners
on Uniform State Laws and adopted almost verbatim by California
in 1975. ( Jhordan C. v. Mary K. (1986) 179 Cal. App. 3d 386, 392
[224 Cal. Rptr. 530].) In Jhordan C. v. Mary K., the First District
explained that former Civil Code section 7005 affords women a vehicle
for obtaining semen for artificial [**28] insemination
without fear that the donor may claim paternity, and provides men
with a statutory vehicle for donating semen to women without fear
of liability for child support. (179 Cal. App. 3d at p. 392.) But
there are no published cases that have analyzed the wording of
subdivision (a) italicized above. In construing this statute, we
look first to the words of the statute, giving to the language
its usual, ordinary import and according significance, if possible,
to every word, phrase and sentence in pursuance of the legislative
purpose. ( Dyna-Med, Inc. v. Fair Employment & Housing Com.
(1987) 43 Cal. 3d 1379, 1386-1387 [241 Cal. Rptr. 67, 743 P.2d
1323].) Significance should be attributed to every word and phrase
of a statute, and a construction making some words surplusage should
be avoided. ( Seidler v. Municipal Court (1993) 12 Cal. App. 4th
1229, 1234 [16 Cal. Rptr. 2d 90].)
The express terms of Family Code section 7613, subdivision (a)
provide that a husband's written consent to the insemination must
be [**29] retained by the physician "as part of
the medical record." "All papers and records pertaining
to the insemination" wherever located--which we construe as
being broader than, and including, the "medical record" previously
mentioned--are subject to being inspected "upon an order of
the court for good cause." (Ibid.) Such "papers and records
pertaining to the insemination" would be expected in most
cases to include the name and address and related information of
the sperm donor whose sperm is used in the insemination, as is
apparently the case here. (See Comment, The Potential for Products
Liability Actions When Artificial Insemination by an Anonymous
Donor Produces Children with Genetic Defects (1994) 98 Dick. L.Rev.
519, 525-526 [concluding that this provision of the Uniform Parentage
Act, which has been adopted in numerous states, allows disclosure
of a sperm donor's identity upon a showing of good cause].) Accordingly,
we conclude that based on the policy expressed in Family Code section
7613, inspection of insemination records, including a sperm donor's
identity and related information contained in those records, may
be disclosed under certain circumstances. Thus, to prohibit disclosure
of the donor's identity and related information in every situation
and under all circumstances, as Cryobank and John Doe attempt to
do here by the Johnsons' agreement with Cryobank, would be contrary
to the policy expressed in the statute. We note that Cryobank has
apparently recognized that disclosure of a donor's identity could
be allowed under certain circumstances as its agreement with all
of its donors provides that the donor's identity "will be
kept in the strictest confidence unless a court orders disclosure
for good cause."
And enforcement under all circumstances of a confidentiality provision
such as the one in Cryobank's contract with the Johnsons conflicts
with California's compelling interest in the health and welfare
of children, including those conceived by artificial insemination.
(See, e.g., Mansfield v. Hyde (1952) 112 Cal. App. 2d 133, 139
[245 P.2d 577] [the state, as parens patriae, is charged with continuing
interest in minor children's welfare and has surrounded the matter
with many protective laws].) There may be instances under which
a child conceived by artificial insemination may need his or her
family's genetic and medical history for important medical decisions.
For example, such genetic and medical history can lead to an early
detection of certain diseases and an increased chance of curing
them. In some situations, a person's ability to locate his or her
biological relative may be important in considering lifesaving
transplant procedures. (See Swanson, Donor Anonymity in Artificial
Insemination: Is It Still Necessary? (1993) 27 Colum. J.L. & Soc.
Probs. 151, 174, 183-184 (hereafter Swanson); Koehler, Artificial
Insemination: In the Child's Best Interest? (1996) 5 Alb. L.J.
Sci. & Tech. 321, 324-330; Note, FDA Approved?: A Critique
of the Artificial Insemination Industry in the United States (1997)
30 U. Mich. J.L. Reform 823, 847-850.) While in most situations
the donor's genetic and medical information may be furnished without
the need of disclosing the donor's identity, there may be other
situations that require disclosure of the donor's identity in order
to obtain the needed information. In either event, a contract that
completely forecloses the opportunity of a child conceived by artificial
insemination to discover the relevant and needed medical history
of his or her genetic father is inconsistent with the best interests
of the child.
We conclude that Cryobank's agreement with the Johnsons precluding
disclosure of the donor's identity and other information pertaining
to the donor under all circumstances is contrary to public policy
and therefore unenforceable. Because a third party beneficiary
such as John Doe can only enforce a contract where there is a " 'valid
and subsisting obligation between the promisor and the promisee' " (
Principal Mutual Life Ins. Co. v. Vars, Pave, McCord & Freedman,
supra, 65 Cal. App. 4th at pp. 1485-1486; 1 Witkin, Summary of
Cal. Law, supra, § 662, p. 601), we hold that the Cryobank
agreement with the Johnsons does not preclude disclosure of the
donor's identity and related information about the donor.
The Constitutional Right of Privacy
Finally, real parties in interest contend that petitioners are
precluded from deposing John Doe because to do so would violate
his constitutional right of privacy under the federal and California
Constitutions. We agree with real parties that donor No. 276 has
a right of privacy in his medical history and his identity. We
disagree, however, that such a right precludes his deposition and
the production of the records requested in the deposition subpoena.
The California Constitution expressly provides that all people
have the inalienable right to privacy. (Cal. Const., art. I, § 1;
see also American Academy of Pediatrics v. Lungren (1997) 16 Cal.
4th 307, 325-326 [66 Cal. Rptr. 2d 210, 940 P.2d 797] [the California
Constitution expressly recognizes a right of privacy and is considered
broader than the implied federal right to privacy].) "In Hill
v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 52-57
[26 Cal. Rptr. 2d 834, 865 P.2d 633] . . ., our high court found
no violation of the constitutional right of privacy from a nonconsensual
drug testing program, including observation of urination, the medical
testing of urine, and the exchange of confidential medical information
attendant upon the administration of the drug testing, for persons
participating in college athletic programs. The court advanced
an analytical framework for deciding questions arising under this
constitutional right of privacy, and found that a violation of
the constitutional right of privacy is only established where three
conditions are shown: '(1) a legally protected privacy interest;
(2) a reasonable expectation of privacy in the circumstances; and
(3) conduct by defendant constituting a serious invasion of privacy.'
( Id. at pp. 39-40.)" ( Rains v. Belshe (1995) 32 Cal. App.
4th 157, 167 [38 Cal. Rptr. 2d 185].)
This right to privacy was described in Hill as encompassing informational
privacy and autonomy privacy: "Legally recognized privacy
interests are generally of two classes: (1) interests in precluding
the dissemination or misuse of sensitive and confidential information
('informational privacy'); and (2) interests in making intimate
personal decisions or conducting personal activities without observation,
intrusion, or interference ('autonomy privacy')." ( Hill v.
National Collegiate Athletic Assn., supra, 7 Cal. 4th at p. 35.)
We apply the Hill three-pronged analysis to determine whether,
as real parties contend, donor No. 276 has a legally recognized
privacy interest in his identity and medical history that precludes
his deposition and production of records.
1. Legally Recognized Privacy Interest
A person's medical history undoubtedly falls within the recognized
zones of privacy. ( Jones v. Superior Court (1981) 119 Cal. App.
3d 534, 549-550 [174 Cal. Rptr. 148]; Board of Medical Quality
Assurance v. Gherardini (1979) 93 Cal. App. 3d 669, 678 [156 Cal.
Rptr. 55]; Pettus v. Cole (1996) 49 Cal. App. 4th 402, 440-441
[57 Cal. Rptr. 2d 46] ["it is well settled that the zone of
privacy created by [the California Constitution] extend[s] to the
details of a patient's medical and psychiatric history"].)
In Gherardini, the court held that "[a] person's medical profile
is an area of privacy infinitely more intimate, more personal in
quality and nature that many areas already judicially recognized
and protected." (93 Cal. App. 3d at p. 678.) Because donor
No. 276's identity is necessarily linked with his medical history,
he likewise has a privacy interest in the disclosure of his identity.
This conclusion is further compelled by the pronouncement in Family
Code section 7613 that "[a]ll papers and records pertaining
to the insemination, whether part of the permanent record of a
court or of a file held by the supervising physician and surgeon
or elsewhere, are subject to inspection only upon an order of the
court for good cause shown." Such papers and records would
be expected in most situations to contain identifying information
regarding the donor. By specifying that such records "are
subject to inspection only upon an order of the court for good
cause shown," we conclude that the statute reveals an intent
to create a limited privacy interest for sperm donors.
2. Reasonable Expectation of Privacy in the Circumstances
" 'Even when a legally cognizable privacy interest is present,
other factors may affect a person's reasonable expectation of privacy.'
. . . 'In addition, customs, practices, and physical settings surrounding
particular activities may create or inhibit reasonable expectations
of privacy. [Citations.]' " ( Rains v. Belshe, supra, 32 Cal.
App. 4th at p. 173, quoting Hill v. National Collegiate Athletic
Assn., supra, 7 Cal. 4th at pp. 36-37.)
The record before us reveals that Cryobank routinely told its
sperm donors that nonidentifying medical history and related information
could be disclosed to the purchasers of the sperm. Such warnings
naturally lessen the donor's expectation that nonidentifying medical
information will not be revealed to purchasers of the sperm. Indeed,
some of donor No. 276's nonidentifying medical history has already
been disclosed to petitioners. We thus conclude that donor No.
276's reasonable expectation as to the disclosure of nonidentifying
medical information was substantially diminished.
And donor No. 276's reasonable expectation of privacy in his identity
was substantially diminished by his own conduct. This is not a
case of a donor making isolated donations of his sperm in order
to help one woman conceive a child. Rather, the record before us
reveals that donor No. 276 deposited over 320 specimens of his
semen with Cryobank. Donor No. 276's 320 semen deposits earned
him over $ 11,000. Thus, donor No. 276's connection with Cryobank
involved a substantial commercial transaction likely to affect
the lives of many people.
We conclude that although donor No. 276 does indeed have a limited
privacy interest in his identity as a sperm donor and in his medical
history, under the circumstances of this case, it would be unreasonable
for donor No. 276 to expect that his genetic and medical history,
and possibly even his identity, would never be disclosed.
3. Conduct Constituting a Serious Invasion of Privacy
Petitioners seek to take John Doe's deposition in order to learn
of all relevant facts he disclosed to Cryobank regarding his medical
history of kidney disease. Petitioners also seek all of John
Doe's records pertaining to "his family's affliction with
[ADPKD], . . . secondary health problems diagnosed as being caused
or related to ADPKD," and "the history of deponent's
medical health as it relates to symptomology of ADPKD . . . ." As
a result, what is at stake here is not only the disclosure of John
Doe's identity and medical history, but of his family's as well.
We conclude that such disclosure would involve an invasion of privacy
unless reasonably curtailed.
4. Balancing of Interests
The constitutional right to privacy is not absolute and must therefore
be balanced against other important interests. The Hill court described
this tension as follows: " '[N]ot every act which has some
impact on personal privacy invokes the protections of [our Constitution]
. . . . [A] court should not play the trump card of unconstitutionality
to protect absolutely every assertion of individual privacy.' [Citation.]
[P] The diverse and somewhat amorphous character of the privacy
right necessarily requires that privacy interests be specifically
identified and carefully compared with competing or countervailing
privacy and nonprivacy interests in a 'balancing test.' The comparison
and balancing of diverse interests is central to the privacy jurisprudence
of both common and constitutional law. [P] Invasion of a privacy
interest is not a violation of the state constitutional right to
privacy if the invasion is justified by a competing interest. Legitimate
interests derive from the legally authorized and socially beneficial
activities of government and private entities. Their relative importance
is determined by their proximity to the central functions of a
particular public or private enterprise. Conduct alleged to be
an invasion of privacy is to be evaluated based on the extent to
which it furthers legitimate and important competing interests." (
Hill v. National Collegiate Athletic Assn., supra, 7 Cal. 4th at
Because discovery orders involve state-compelled disclosure, such
disclosure is treated as a product of state action. ( Britt v.
Superior Court (1978) 20 Cal. 3d 844, 856, fn. 3 [143 Cal. Rptr.
695, 574 P.2d 766]; Mendez v. Superior Court (1988) 206 Cal. App.
3d 557, 566-567 [253 Cal. Rptr. 731].) Consequently, whenever the
compelled disclosure treads upon the constitutional right of privacy,
there must be a compelling state interest. (See also Vinson v.
Superior Court (1987) 43 Cal. 3d 833, 842 [239 Cal. Rptr. 292,
740 P.2d 404] ["courts must balance the right of civil litigants
to discover relevant facts against the privacy interests of persons
subject to discovery"].)
We conclude that there are compelling state interests in this
case. First, the state has a compelling interest in making certain
that parties comply with properly served subpoenas and discovery
orders in order to disclose relevant information to the fullest
extent allowable. Second, the state has an interest in seeking
the truth in court proceedings. As stated in Palay v. Superior
Court (1993) 18 Cal. App. 4th 919, 933 [22 Cal. Rptr. 2d 839], "The
state has enough of an interest in discovering the truth in legal
proceedings, that it may compel disclosure of confidential material.
[Citation.]" This includes medical records. ( Board of Medical
Quality Assurance v. Gherardini, supra, 93 Cal. App. 3d at p. 679
["an individual's medical records may be relevant and material
in the furtherance of [a] legitimate state purpose . . ."].)
Third, the state has a compelling interest in ensuring that those
injured by the actionable conduct of others receive full redress
of those injuries. Petitioners have demonstrated a compelling need
to depose the only independent percipient witness that apparently
can reveal the extent of information donor No. 276 disclosed to
Cryobank. Such information is not only directly relevant to petitioners'
claims, but is also relevant to Cryobank's affirmative defense
of comparative fault. Thus, where, as here, the information sought "is
essential to the fair resolution of the lawsuit, a trial court
may properly compel such disclosure." ( Britt v. Superior
Court, supra, 20 Cal. 3d at p. 859.)
We recognize that Cryobank has an interest in maintaining the
confidentiality of those who agree to sell their sperm to its facility.
But, as we have already stated, Cryobank cannot block disclosure
of relevant donor information in every instance solely because
it has a confidentiality agreement with purchasers of donated sperm
and with the donors. Further, we question Cryobank's contention
that without complete confidentiality its business will suffer
because it will be unable to attract donors. Research on the subject
suggests that confidentiality is generally more of a concern to [*1072] doctors
than it is to donors. (See Swanson, supra, 27 Colum. J.L. & Soc.
Probs. at pp. 171-172.) In addition, we do not hold in this case
that complete and unfettered disclosure is justified, but only
such disclosure as is necessary and relevant to the issues in the
While donor No. 276 has an interest in maintaining the confidentiality
of his identity and medical history, we hold that in the context
of the particular facts [**44] of this case the state's
interests, as well as those of petitioners, outweigh donor No.
276's interests. Accordingly, John Doe must appear at his deposition
and answer all questions and produce documents that are relevant
to the issues raised in the litigation. But this does not mean
that John Doe's identity must automatically be disclosed if he
indeed is donor No. 276.
In Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 712 [21 Cal.
Rptr. 2d 200, 854 P.2d 1117] the court stated that in evaluating
privacy claims for the protection of third parties, a court should
consider its " ' "ability . . . to make an alternative
order which may grant partial disclosure, disclosure in another
form, or disclosure only in the event that the party seeking the
information undertakes certain specified [***879] burdens
which appear just under the circumstances." [Citation.] Where
it is possible to do so, ". . . the courts should impose partial
limitations rather than [an] outright denial of discovery." [Citation.]' "
For example, an order could be fashioned which would allow John
Doe's deposition to proceed and documents produced on matters relevant
to the issues in the litigation but in a manner which maintains
the confidentiality of John Doe's identity and that of his family.
Attendance at the deposition could be limited to the parties' counsel
and the deposition transcript might refer simply to "John
Doe" as the deponent. But we leave it to the trial court to
craft the appropriate order.
We conclude that the trial court abused its discretion in denying
petitioners' motion to compel John Doe's deposition and production
of documents and in granting real parties' motion to quash. The
trial court failed to consider the state and petitioners' countervailing
interests that favor disclosure and failed to consider an order
with " ' "partial limitations rather than [an] outright
denial of discovery." ' " ( Schnabel v. Superior Court,
supra, 5 Cal. 4th at p. 712.) Petitioners are entitled to take
John Doe's deposition and inquire whether he is donor No. 276,
and if he is, delve into his and his family's health and medical
history, and his communications with Cryobank, but only as to those
issues which are relevant to the pending litigation. Similarly,
we conclude that petitioners are entitled to the production of
documents identified in their renotice of John Doe's deposition
which are relevant and in the possession, custody, or control of
John Doe. But John Doe's identity is to be protected to the fullest
extent possible and the identities of his family members are not
to be disclosed.