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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." |
