1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

5.2.1. Gifts of Sperm

DEBORAH E. HECHT, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; WILLIAM EVERETT KANE, JR., et al., Real Parties in Interest.

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN.

16 Cal. App. 4th 836; 1993 Cal. App. LEXIS 638; 20 Cal. Rptr. 2d 275

June 17, 1993, Decided

FACTUAL AND PROCEDURAL BACKGROUND

At the age of 48, William E. Kane took his own life on October 30, 1991, in a Las Vegas hotel. For about five years prior to his death, he had been living with petitioner, thirty-eight-year-old Deborah E. Hecht. Kane was survived by two college-age children of his former wife whom he had divorced in 1976.

In October 1991, decedent deposited 15 vials of his sperm in an account at California Cryobank, Inc., a Los Angeles sperm bank (hereinafter sperm bank). On September 24, 1991, he signed a "Specimen Storage Agreement" with sperm bank which provided in pertinent part that "In the event of the death of the client [William E. Kane], the client instructs the Cryobank to: . . . [P] Continue to store [the specimens] upon request of the executor of the estate [or] [r]elease the specimens to the executor of the estate." A provision captioned "Authorization to Release Specimens" states, "I, William Everett Kane, . . . authorize the [sperm bank] to release my semen specimens (vials) to Deborah Ellen Hecht. I am also authorizing specimens to be released to recipient's physician Dr. Kathryn Moyer."

On September 27, 1991, decedent executed a will which was filed with the Los Angeles County Superior Court and admitted to probate. The will named Hecht as executor of the estate, and provides, "I bequeath all right, title, and interest that I may have in any specimens of my sperm stored with any sperm bank or similar facility for storage to Deborah Ellen Hecht." A portion of the will entitled "Statement of Wishes" provided, "It being my intention that samples of my sperm will be stored at a sperm bank for the use of Deborah Ellen Hecht, should she so desire, it is my wish that, should [Hecht] become impregnated with my sperm, before or after my death, she disregard the wishes expressed in Paragraph 3 above [pertaining to disposition of decedent's "diplomas and framed mementoes,"] to the extent that she wishes to preserve any or all of my mementoes and diplomas and the like for our future child or children."

The will also bequeaths a home in Monterey County to Hecht and an adjoining seven-and-one-half-acre parcel of unimproved land to William E. Kane, Jr., and Katharine Kane, on condition that they deed and convey .4 acre of unimproved land adjacent to the home to Hecht.  The residue of the estate was bequeathed to Hecht, the will stating, "I recognize that my children . . . are financially secure and therefore leave them nothing other than the land included in this bequest, subject to the conditions as set forth above."

An October 21, 1991, letter signed by Kane and addressed to his children stated: "I address this to my children, because, although I have only two, Everett and Katy, it may be that Deborah will decide--as I hope she will--to have a child by me after my death. I've been assiduously generating frozen sperm samples for that eventuality. If she does, then this letter is for my posthumous offspring, as well, with the thought that I have loved you in my dreams, even though I never got to see you born. [P] If you are receiving this letter, it means that I am dead--whether by my own hand or that of another makes very little difference. I feel that my time has come; and I wanted to leave you with something more than a dead enigma that was your father. [P] . . . I am inordinately proud of who I have been--what I made of me. I'm so proud of that that I would rather take my own life now than be ground into a mediocre existence by my enemies--who, because of my mistakes and bravado have gained the power to finish me."

After several pages of childhood memories and family history, the letter stated: "So why am I checking out now? Basically, betrayal, over and over again, has made me tired. I've picked up some heavyweight enemies along the way--ranging from the Kellys of the world, to crazies with guns, to insurance companies, to the lawyers that have sucked me dry . . .. I don't want to die as a tired, perhaps defeated and bitter old man. I'd rather end it like I have lived it--on my time, when and where I will, and while my life is still an object of self-sculpture--a personal creation with which I am still proud. In truth, death for me is not the opposite of life; it is a form of life's punctuation."

Kane committed suicide on October 30, 1991, in Las Vegas, Nevada. On November 18, 1991, Robert L. Greene was appointed special administrator of the estate of William Everett Kane. On December 3, 1991, William Kane, Jr., and Katharine Kane each filed separate will contests.

Real parties Katharine Kane and William Kane, Jr., filed a statement of interested parties in which they argued that ordering destruction of decedent's sperm would "help guard the family unit in two different ways": First, such an order would prevent the birth of children who will never know their father and "never even have the slightest hope of being raised in a traditional family." Second, such an order would "prevent the disruption of existing families by after-born children," and would "prevent additional emotional, psychological and financial stress on those family members already in existence." They characterized the desire to father children after one's death as "egotistic and irresponsible," and stated that they "have lost their father to a tragic death which Hecht could easily have prevented; they do not wish to suffer any more at her hands. Further, they do not wish to be troubled for the rest of their lives with worries about the fate of their half-sibling(s)." [1]

Hecht filed a brief in response to the administrator's petition. She argued that neither the estate nor the children currently hold any property interest in, or right to distribution of, the sperm; it was gifted to her at the time of its deposit into the sperm bank and is either an inter vivos gift or a gift causa mortis.

As we hereinafter explain, the decedent's interest in his frozen sperm vials, even if not governed by the general law of personal property, occupies "an interim category that entitles them to special respect because of their potential for human life" (see Davis v. Davis (Tenn. 1992) 842 S.W.2d 588, 597), and at the time of his death, decedent had an interest, in the nature of ownership, to the extent that he had decisionmaking authority as to the sperm within the scope of policy set by law. (Ibid.) Thus, decedent had an interest in his sperm which falls within the broad definition of property in Probate Code section 62, as "anything that may be the subject of ownership and includes both real and personal property and any interest therein."

II NATURE OF RIGHTS IN SEMEN

"The present legal position toward property rights in the human body is unsettled and reflects no consistent philosophy or approach. Until recently, the common law either refused to recognize a property right in human bodies or recognized only a quasi-property right. . . . [The court in Moore v. Regents of University of California, supra, 51 Cal.3d 120]  did not resolve the debate over the existence or extent of a property interest in one's body. Nor does the existing statutory scheme quiet the debate. The statutes that address individuals' control over their bodies delineate the extent of that control in specific situations, but do not establish a general principle." (Note, Personalizing Personalty: Toward a Property Right in Human Bodies (1990) 69 Tex. L.Rev. 209, 220, fns. omitted.)

As also recognized by the court in Moore, "the laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property. It is these specialized statutes, not the law of conversion, to which courts ordinarily should and do look for guidance on the disposition of human biological materials." (51 Cal.3d at p. 137, fns. omitted.)

However, "[n]one of the statutes on artificial insemination indicate who owns the sperm donation, but sperm banks generally require those donors who are to be anonymous to sign a written waiver of any rights to the deposit and any paternity claims to children born from it. In return, the sperm bank guarantees the donor's anonymity. Thus, according to the contract between the parties, the donor no longer 'owns' the sperm. [P] Men who use sperm banks to store their sperm for their own future use, however, do own their donation(s) of sperm and are required to pay for its maintenance and its later withdrawal. Upon notice of the death of the donor, however, many storage agreements authorize the sperm bank to dispose of the deposit. Requests from the widow of the donor to be inseminated with the sperm, as a matter of practice, are denied absent express instructions in the donor's will or a court order." (Shapiro & Sonnenblick, The Widow and the Sperm: The Law of Post-Mortem Insemination (1986) 1 J. Law & Health 229, 243-244, fns. omitted [discussing the language in the storage agreement used by Idant Laboratory in New York, which permits Idant, upon the death of the donor, to discard the sperm or use it in scientific research, "except that no Specimen will be used, without the Client's written consent, for the purpose of causing pregnancy by means of artificial insemination." ( at p. 243, fn. 115)].)

The American Fertility Society, in its ethical statement on in vitro fertilization, has written that "It is understood that the gametes and concepti are the property of the donors. The donors therefore have the right to decide at their sole discretion the disposition of these items, provided such disposition is within medical and ethical guidelines . . .." ( York v. Jones (E.D.Va. 1989) 717 F.Supp. 421, 426, fn. 5, citing Ethics Com. of the Am. Fertility Society, Ethical Considerations of the New Reproductive Technologies (1986) 46 Fertility and Sterility 89s.) 

… 

Sperm which is stored by its provider with the intent that it be used for artificial insemination is thus unlike other human tissue because it is "gametic material" ( Davis v. Davis, supra, 842 S.W.2d 588, 597) that can be used for reproduction. Although it has not yet been joined with an egg to form a preembryo, as in Davis, the value of sperm lies in its potential to create a child after fertilization, growth, and birth. We conclude that at the time of his death, decedent had an interest, in the nature of ownership, to the extent that he had decisionmaking authority as to the use of his sperm for reproduction. Such interest is sufficient to constitute "property" within the meaning of Probate Code section 62.

We thus proceed to address the argument that public policy forbids the artificial insemination of Hecht because she is an unmarried woman.

III ARTIFICIAL INSEMINATION AND UNMARRIED WOMEN

Although artificial insemination in itself is not new, having been performed on animals for centuries, the first recorded successful human artificial insemination was performed in England in 1770. (Shapiro & Sonnenblick, supra, 1 J. Law & Health 229, 234; hereinafter Shapiro and Sonnenblick.) Although the practice was slow to be accepted in the United States until the mid-20th century, artificial insemination has now gained widespread acceptance as "medical technology has made it increasingly available and inexpensive to the estimated fifteen percent of all married couples who are infertile." (Ibid., fns. omitted.) Artificial insemination was made available to the astronauts in 1961 so they could still father healthy children using stored sperm even if space travel were to harm their reproductive systems. (Ibid.)

By 1986, it was estimated that as many as 20,000 women each year were artificially inseminated in the United States; by one estimate, 1,500 of these women were unmarried. ( Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 389, fn. 1 [224 Cal.Rptr. 530].)

In Jhordan C. v. Mary K., supra, 179 Cal.App.3d 386, the court interpreted Civil Code section 7005, subdivision (b), part of the Uniform Parentage Act (UPA),[2] as affording "unmarried as well as married women a statutory vehicle for obtaining semen for artificial insemination without fear  [*853]  that the donor may claim paternity, and has likewise provided men with a statutory vehicle for donating semen to married and unmarried women alike without fear of liability for child support." (179 Cal.App.3d at p. 392.)

In Jhordan C., an unmarried woman artificially inseminated herself at home with the semen of a known donor and gave birth to a child, which she wanted to raise jointly with a close woman friend; the donor obtained a paternity judgment from which the mother appealed. In affirming the judgment, the court held that "where impregnation takes place by artificial insemination, and the parties have failed to take advantage of this statutory basis for preclusion of paternity [by providing semen to a licensed physician], the donor of semen can be determined to be the father of the child in a paternity action." (179 Cal.App.3d 386, 389.)

The court in Jhordan C. was careful to stress "that our opinion in this case is not intended to express any judicial preference toward traditional notions of family structure or toward providing a father where a single woman has chosen to bear a child. Public policy in these areas is best determined by the legislative branch of government, not the judicial. Our Legislature has already spoken and has afforded to unmarried women a statutory right to bear children by artificial insemination (as well as a right of men to donate semen) without fear of a paternity claim, through provision of the semen to a licensed physician. We simply hold that because Mary omitted to invoke Civil Code section 7005, subdivision (b), by obtaining Jhordan's semen through a licensed physician, and because the parties by all other conduct preserved Jhordan's status as a member of Devin's [the child's] family, the trial court properly declared Jhordan to be Devin's legal father." (179 Cal.App.3d at pp. 397- 398; italics added.)

The court in Jhordan C. based its conclusion that the Legislature had "already spoken" on the issue of an unmarried woman's right to artificial insemination, because "Section 7005 is derived almost verbatim from the UPA as originally drafted, with one crucial exception. The original UPA restricts application of the nonpaternity provision of subdivision (b) to a 'married woman other than the donor's wife.' (9A West's U.Laws Ann., op. cit. supra, § 5 subd. (b), p. 593; . . ..) The word 'married' is excluded from subdivision (b) of section 7005, so that in California, subdivision (b) applies to all women, married or not."  (179 Cal.App.3d at p. 392; original italics.) We agree with the reasoning in Jhordan C.; had the Legislature intended to express a public policy against procreative rights of unmarried women or  [*854]  against artificial insemination of unmarried women, it would not have excluded the word "married" from Civil Code section 7005, subdivision (b). Colorado, Washington, Wisconsin and Wyoming have also eliminated the word "married" from subdivision (b) in their adoption of the UPA. (Shapiro & Sonnenblick, supra, 1 J. Law & Health 229, 240, fn. 93.)

Citing Civil Code section 4600, subdivision (a), dealing with the custody of children whose parents are separated or divorced, real parties contend that the latter "demonstrates the state's recognition that a child is better off with two living parents, whether living apart or living together, rather than with just one parent." Section 4600,  subdivision (a) declares the Legislature's policy "to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing . . .." The foregoing statute is neither pertinent to, nor implicated in, the instant case where we are concerned with the procreative rights of an unmarried woman. Real parties fail to cite any pertinent authority which indicates that the state has a policy of preventing the formation of single-parent families. We also point out that, at this time, the issue is speculative, as it assumes that Hecht will bear a child into a single-parent family.

… we also find without merit the argument of real parties that "The state's interest in protecting the institutions of family and marriage dictates petitioner should be denied access to the sperm." Clearly the institution of marriage is not implicated in this case, especially where there was no existing marriage relationship involving decedent at the time of his death and obviously there can be none after his death. (See Jhordan C. v. Mary K., supra, 179 Cal.App.3d 386, 395.) It is also premature for us to address the issue of family integrity and, in any case, there is no factual basis in this record to support any contention that the artificial insemination of Hecht would have an impact on any other family, including any family involving decedent's surviving adult children.

We thus conclude that real parties fail to establish with any pertinent authority that the public policy of California prohibits the artificial insemination of Hecht because of her status as an unmarried women.

IV POSTMORTEM ARTIFICIAL INSEMINATION

… real parties argue that "this court should adopt a state policy against posthumous conception," because it is "in truth, the creation of orphaned children by artificial means with state authorization," a result which they characterize as "tragic." However, real parties do not cite any authority establishing the propriety of this court, or any court, to make the value judgment as to whether it is better for such a potential child not to be born, assuming that both gamete providers wish to conceive the child. In other words, assuming that both Hecht and decedent desired to conceive a child using decedent's sperm, real parties fail to establish a state interest sufficient to justify interference with that decision. As in Tennessee, we are aware of no statutes in California which contain a "statement of public policy which reveals an interest that could justify infringing on gamete-providers' decisional authority . . .." ( Davis v. Davis, supra, 842 S.W.2d 588, 602.)

… Real parties also intimate that the birth of a child by Hecht using decedent's sperm will create psychological burdens on them, decedent's surviving adult children, as well as financial burdens on society and on the estate.

… The interest of heirs and courts in the finality of probate rulings was recognized by the committee which drafted the Uniform Status of Children of Assisted Conception Act, which has been adopted in various forms in North Dakota and Virginia. Section 4 of that act provides in pertinent part that "[Except as otherwise provided in Sections 5 through 9:] . . . (b) An individual who dies before implantation of an embryo, or before a child is conceived other than through sexual intercourse, using the individual's egg or sperm, is not a parent of the resulting child." The exceptions, dealing with surrogacy agreements, are not pertinent here.

The committee comment states that "Subsection 4(b) is designed to provide finality for the determination of parenthood of those whose genetic material is utilized in the procreation process after their death. The death of the person whose genetic material is either used in conceiving an embryo or in implanting an already existing embryo into a womb would end the potential parenthood of the deceased. . . . [P] . . . It is designed primarily to avoid the problems of intestate succession which could arise if the posthumous use of a person's genetic material could lead to the deceased being termed a parent. Of course, those who want to explicitly provide for such children in their wills may do so." (9B West's U.Laws Ann. (1987) U. Status of Children of Assisted Conception Act (1988 Act; 1993 pocket supp.) committee com. pp. 140-141.) The result in section 4(b) of the Uniform Status of Children of Assisted Conception Act appears to be consistent with application of Civil Code section 7005 and Probate Code sections 6407 and 6408 to the instant circumstances. (Ante, fn. 8.)

… Decedent's adult children also fail to provide any legal or factual basis to support their contention that the birth of a child through the artificial insemination of Hecht with decedent's sperm implicates their "fundamental right to protection of their family integrity

 

 

[1] On November 12, 1992, decedent's children filed against Hecht a first amended complaint for wrongful death and intentional enfliction of emotional distress, wherein they alleged, inter alia, that their father, who had been unemployed for some time, became deeply depressed and began to seriously contemplate suicide about September 1, 1991; for six weeks before his death, Hecht was aware of decedent's "disturbed plan" to end his life; that Hecht convinced him to allow her to have his child after his death and to leave her a substantial amount of his property to raise and care for this child; in the week before his death, Hecht encouraged and assisted decedent in transferring property to her and decedent emptied his personal checking account by issuing a check to Hecht for $ 80,000; Hecht assisted decedent in purchasing a one-way ticket to Las Vegas and took him to the airport.

[2] Civil Code section 7005 provides: "(a) If, under the supervision of a licensed physician 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 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'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 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 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."