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Decedents have an interest in their sperm which falls within the broad definition of property in Cal. Prob. Code § 62, as anything that may be the subject of ownership and includes both real and personal property and any interest therein.
A man deposited cryogenically preserved sperm at a sperm bank with the authorization that the sperm be released to his girlfriend or to the executor of his estate in the event of his death. He also executed a will in which he left the sperm to his girlfriend, in which he expressed the desire that the girlfriend be impregnated with his sperm, and in which he left his estate to the girlfriend and his two adult children from a previous marriage. After the man killed himself, the will was admitted into probate, the children contested the will, and the parties attempted to settle the estate. In proceedings adjudicating the distribution of the estate, the administrator filed a "Petition for Alternative Relief (Instructions to Destroy Decedent's Frozen Sperm or Order for Preliminary Distribution of Said Sperm and Order of Determination of Whether Children Conceived from Said Sperm Shall Be Entitled to Distribution and Instructions Concerning Administration of Estate Pending Conception and Birth of Said Children)." In the petition, the executor stated that the children requested that the sperm be destroyed, or in the alternative, for an order distributing either 80 percent or 100 percent of the sperm to them upon alternate theories of entitlement. The trial court ordered destruction of the sperm, and the girlfriend petitioned the Court of Appeal for extraordinary relief.
Did the trial court err in ordering the destruction of the decedent’s sperm?
The Court of Appeal ordered issuance of a writ of mandate directing the superior court to vacate its order, to enter a new order denying the petition for alternative relief, and to conduct further proceedings. The court preliminarily held that the decedent had an interest in his cryogenically preserved sperm that fell within the broad definition of property in Prob. Code, § 62, and thus the probate court had jurisdiction over the disposition of the sperm. It also held that there was no public policy prohibiting the artificial insemination of the girlfriend because of her status as an unmarried woman; nor was there a public policy prohibiting conception by artificial insemination using the sperm of a deceased man. Also, it was premature to rule on whether the girlfriend's becoming pregnant would negatively affect the integrity of the decedent's family, to determine whether the girlfriend had available other means of procreation, or to determine whether any child of the girlfriend would become a burden upon the family or upon society. Thus, the trial court abused its discretion in ordering the destruction of the sperm.