Deborah Ellen HECHT, Petitioner,
v.
The SUPERIOR COURT of the County of Los Angeles, Respondent.
William Everett KANE, Jr., et al., Real Party in Interest.
50 Cal. App. 4th. 1289 (1996)
In this writ proceeding we hold the disposition of a decedent's sperm he intended be used by a specific woman is not governed by a property settlement agreement arising out of a will contest involving that woman. In an unpublished section of this opinion we also reject three fall-back arguments real parties raised in their briefing. Accordingly, we order immediate release of the remaining vials of sperm to petitioner.
FACTS AND PROCEEDINGS BELOW
This is the third time our court has been asked to resolve an issue in this proceeding. The facts are essentially the same as those detailed in the first opinion we filed and need only be summarized here.
For several years now, the decedent's adult children, William Everett Kane, Jr., and Katherine Kane, have been attempting to frustrate the petitioner, Deborah Ellen Hecht (Hecht), from conceiving a child using their deceased father's sperm. In our first opinion we described the abundant documentary evidence of decedent's intent the sperm vials he gave to a sperm bank were for the sole purpose of Hecht's use in conceiving and birthing their child.
(1) The donation form he signed when he stored the sperm vials stated the sperm was to be given to Hecht or her named gynecologist and no one else.
(2) Decedent's will specifically 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.” The form also provided that upon decedent's death, the sperm was to be turned over to his executor as part of his estate.
(3) In a “STATEMENT OF WISHES” in this same will, decedent further explains, “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 Deborah Ellen become impregnated with my sperm, before or after my death, she disregard the [prior provision giving decedent's diplomas and framed momentoes to his adult son], to the extent that she wishes to preserve any or all of my momentoes (sic) and diplomas and the like for our future child or children.” The will also named Hecht as the executor of decedent's estate. (Hecht did not serve as executor, however, or this lawsuit probably would never have occurred.)
(4) In a letter dated October 21, 1991, decedent addressed “To my Children” and intended to be read after his death, decedent wrote: “I address this to my children, because, although I have only two ..., 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. (Para.) 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.”
Consistent with his frequently expressed intent that Hecht conceive and bear his child, decedent deposited a total of 15 vials of his sperm at the cryobank. He made these deposits in six installments, each requiring a separate trip to the cryobank facility, stretched over a month. A few weeks later he flew to Las Vegas with $20,000, eventually lost it and committed suicide.
Decedent's adult children filed a challenge to the will. The parties ultimately settled this law suit. They signed a “global settlement” as to the disposition of all the estate's “assets.” Among other provisions, this “global settlement” provided Hecht was to receive 20 percent of the estate's residual “assets.”
Shortly after this settlement, Hecht went to the cryobank to claim the sperm vials so she could use them to become pregnant with decedent's child. The executor blocked release of the sperm and asked for instructions from the court. The case was assigned to the Honorable Edward Ross of the Los Angeles Superior Court. He proceeded to order destruction of all 15 sperm vials. In our first opinion, we reversed this order and remanded with instructions the trial court conduct further proceedings as to the disposition of the sperm consistent with the views expressed in that opinion.
On April 26, 1994, another probate judge, the Honorable Arnold Gold, decided Hecht at a minimum was entitled to the 20 percent of the sperm she would receive as “assets” of the estate under the terms of the property settlement. Accordingly, he ordered a preliminary distribution of three (of the fifteen) sperm vials to Hecht. Decedent's adult children appealed and the administrator refused to comply with the probate court's decision..
Hecht filed a writ petition seeking to compel immediate compliance with Judge Gold's order to release the three vials of sperm. The petition presented declarations Hecht risked an imminent loss because at age 40 her chances of successful conception diminished with each month. In a subsequent writ proceeding, this court held the appeal did not stay enforcement of the probate court's preliminary order. In order to “prevent injury or loss to [Hecht]” the probate court was authorized and in our opinion instructed to “direct the exercise the powers of the personal representative” to comply with the preliminary distribution of three sperm vials.
Hecht received the three sperm vials. The first two attempts to conceive proved unsuccessful. Before trying again, her gynecologist wanted to know whether there was only one more vial available, which would dictate usage of a riskier technique, or whether they could gain possession of the remaining 12 vials and use normal procedures.
Hecht filed a petition seeking release of the 12 remaining vials. The probate judge denied the petition on grounds the property settlement governed disposition of the sperm vials as well as the real and personal property of the estate. Finding the property settlement gave Hecht 20 percent of the estate's residual “assets,” the court ruled Hecht was only entitled to the three vials (out of fifteen) she already had received in the preliminary distribution.
For the third time, Hecht sought relief in this court, filing a writ petition challenging the probate court ruling denying her access to the remaining 12 vials. We granted an alternative writ. We concluded, however, we could not determine whether petitioner was entitled to the requested relief without holding an evidentiary hearing on one of real parties' fallback arguments-that decedent's sperm donation to petitioner was the product of mental incapacity or undue influence. Accordingly, we ordered the probate court to serve as our referee and take evidence on these factual issues.
On September 5, 1996, this court heard oral argument on the issues of decedent's lack of capacity and Hecht's undue influence. In an unpublished, fact intensive, section of this opinion we review the evidence produced at the referee's hearing in probate court and conclude real parties failed to sustain their burden to prove lack of capacity or undue influence. In the unpublished portion of this opinion we also briefly dismiss two other arguments as without merit. We find this donation of sperm to petitioner did not violate the “Uniform Anatomical Gifts Act” nor did it violate any constitutional right to preserve the integrity of real parties' family.
We now turn to the central issue raised by this petition-the conflict between decedent's clear intent to donate his sperm to petitioner for purposes of procreation and a property settlement purporting to distribute all residual “assets” of decedent's estate among petitioner and real parties.
DISCUSSION
I. DECEDENT'S SPERM IS A UNIQUE MATERIAL, NOT SUBJECT TO THE TERMS OF A PROPERTY SETTLEMENT BETWEEN CLAIMANTS UNDER THE WILL.
The genetic material involved here is a unique form of “property.” It is not subject to division through an agreement among the decedent's potential beneficiaries which is inconsistent with decedent's manifest intent about its disposition. A man's sperm or a woman's ova or a couple's embryos are not the same as a quarter of land, a cache of cash, or a favorite limousine. If we are to honor decedent's intent as expressed in several written documents, his sperm can only be used by and thus only has value to one person, the petitioner in this case. (As mentioned earlier, in an unpublished portion of this opinion we find decedent's expressed intent was his true intent and not the product of Hecht's undue influence or decedent's lack of mental capacity.)
From decedent's clear expressions of intent, it is apparent he created these vials of sperm for one purpose, to produce a child with this woman. Not to produce a child with any other specific woman or with an anonymous female. Not to produce a descendant with any other genetic makeup than would result from a combination of his sperm and this woman's ovum. Even Hecht lacks the legal entitlement to give, sell, or otherwise dispose of decedent's sperm. She and she alone can use it. Even she cannot allow its use by others, if the law is to honor the decedent's clearly expressed intent. Thus, in a very real sense, to the extent this sperm is “property” it is only “property” for that one person. As such it is not an “asset” of the estate subject to allocation, in whole or in part, to any other person whether through agreement or otherwise.
The unanimous opinion Justice Lillie authored [in a prior opinion in this case] establishes the principle the intent of the sperm donor-and no one else's-controls the disposition and use of the sperm. This opinion quotes at length and with approval from an account of a decision of a French court. That decision “characteriz[ed] sperms ... as” “ ‘the seed of life ... tied to the fundamental liberty of a human being to conceive or not to conceive.’ This fundamental right must be jealously protected, and is not to be subjected to the rules of contracts. Rather the fate of the sperm must be decided by the person from whom it is drawn. Therefore, the sole issue becomes that of intent.”
Applying this principle to the present case, the decedent's right to procreate with whom he chooses cannot be defeated by some contract third persons-including his chosen donee-construct and sign. His “fundamental right” must be “jealously guarded.” It is true the chosen donee may voluntarily elect not to become impregnated with the descendant's sperm. But she may not sell or contract away the decedent's “fundamental right” to other persons.
So even assuming, as decedent's adult children do, that Hecht intended to sign away 80 percent of decedent's sperm to those adult children in order to achieve a resolution of the property issues implicated in this will contest, she lacked the right and legal power to do so under the principles enunciated in this court's first opinion. . . .The only reasonable reading of the opinion Justice Lillie wrote for this court is that the law should not permit anyone, including even Hecht, to treat the decedent's “fundamental interest” in procreation as an item for negotiation and trade among the claimants for decedent's estate. The only way for the law to ensure the decedent's “fundamental interest” is not so used is to remove it from the negotiating table. And, the only way to remove it from the table is to refuse to enforce any contract term which purports to impair realization of the decedent's intent his sperm be used to produce a child with the woman he wanted to bear that child.
Applying these principles to the present case, neither this court nor decedent's adult children possess reason or right to prevent Hecht from implementing decedent's preeminent interest in realizing his “fundamental right” to procreate with the woman of his choice. Thus, the “only issue” is whether this decedent “intended [Hecht] to be artificially inseminated with his sperm and whether that intent was ‘unequivocal.’ ”
Seldom has this court reviewed a probate case where the decedent evidenced his or her intent so clearly. Here decedent's will said he had created and stored this sperm for the sole purpose of having a child with Hecht and then later in the will expressed a desire she do so. That alone would be enough for any court to order that Hecht indeed receive all of decedent's sperm. But decedent also instructed the cryobank preserving his sperm that it should deliver that sperm only to Hecht. Upon his death he instructed they deliver the sperm to his executor, who according to his will also was Hecht. If there were any ambiguity in that instruction it was resolved by a letter addressed to his adult children, the real parties in this writ proceeding. That letter told them decedent had created the sperm vials with the specific intent Hecht use them for the purpose of creating a brother or sister for them, and hoped Hecht would choose to do so.
Accordingly, we conclude the probate court erred in holding the “global settlement” agreement controlled distribution of decedent's sperm and limited petitioner to a 20 percent share of that sperm. Thus, this rationale does not support the court's refusal to order release of the remaining 12 vials to petitioner Hecht.
CONCLUSION
This court hopes and expects this is the last in the series of cases over Hecht's right to these vials of sperm. This has never been a dispute over whether women shall be allowed to produce children through sperm donated by now dead fathers. Under current law and technology Hecht could have gone to this same cryobank and obtained sperm from an anonymous donor, including one who is no longer alive. All we decided was her entitlement to the sperm of a particular donor, the man she had loved and lived with for five years. It became an issue only because of an unusual, and perhaps unique, configuration of personalities and motivations. Unfortunately, it also took three years of litigation and three trips to this court to finally resolve the question.
We also emphasize another set of issues we did not decide in this opinion. We do not have before us the many legal questions raised by the possible birth of a child to Hecht through use of Kane's sperm. Thus, we do not decide, for instance, whether that child would be entitled to inherit any property as Kane's heir.
On the other hand, we deliberately resolved all the issues the probate court may properly consider under real parties' challenge. Accordingly, we are granting petitioner's requested writ and ordering immediate release of the remaining 12 vials of sperm to Hecht.
DISPOSITION
The petition is granted. Let a peremptory writ issue directing the probate court to order the administrator to release the remaining vials of decedent's sperm to petitioner upon her request.