59 Cal. Rptr. 2d 222 (Cal. Ct. App. 1996)
William E. Kane, age 48, committed suicide on October 30, 1991, in a Las Vegas hotel after living with his girlfriend Deborah E. Hecht for about five years.1 Kane was survived by two adult children from a prior marriage that ended in divorce in 1976.2 In October 1991, prior to his death, Kane deposited fifteen vials of his sperm at California Cryobank, Inc., in Los Angeles.3
On September 24, 1991, Kane signed a Specimen Storage Agreement with the sperm bank directing that upon his death the specimens be released to the executor of his estate or continue storage at the executor's request.4 He also executed an authorization allowing release of the specimens to Hecht and her physician.5 On September 27, 1991, Kane executed a will naming Hecht as executor and bequeathing all interest in his stored sperm to her, along with a statement of wishes expressing hope that she would use the sperm to conceive a child.6
Kane wrote a letter dated October 21, 1991, addressed to his children expressing his desire that Hecht bear his child after his death using the stored sperm.7 Following his suicide, Robert L. Greene was appointed special administrator of the estate on November 18, 1991.8 On December 3, 1991, the children filed will contests, and the parties reached a tentative settlement agreement in open court regarding estate assets.9
Disputes arose over the first settlement agreement when Hecht sought the sperm.10 This led to a second settlement agreement in October 1992 under which the estate would assign any interest in the sperm to Hecht in exchange for indemnification.11 A creditor objected, and the children sought to withdraw.12 On November 5, 1992, the administrator filed a petition seeking court instructions on whether to destroy the sperm or distribute it, among other alternatives.13
At a December 9, 1992 hearing, the superior court ordered the sperm destroyed, and on January 4, 1993, entered a formal order directing the administrator to instruct the cryobank to destroy all of Kane's sperm.14 Hecht filed a petition for writ of mandate in the Court of Appeal on March 5, 1993, seeking to vacate the destruction order; the appellate court issued a stay and order to show cause.15
Whether the decedent's cryogenically preserved sperm constitutes property subject to the jurisdiction of the probate court?16
Probate Code section 62 defines property broadly to include anything that may be the subject of ownership.17 Although sperm is not governed by general personal property law, the decedent's interest occupies an interim category entitling it to special respect because of its potential for human life.18 This interest confers decisionmaking authority within the scope of policy set by law, sufficient to bring it within probate jurisdiction.19
Yes. Kane deposited fifteen vials of his sperm at California Cryobank, Inc., executed a Specimen Storage Agreement directing disposition upon death, and executed a will bequeathing all interest in the stored sperm to Hecht, establishing his ownership interest in the nature of property at the time of death.20 The probate court therefore possessed jurisdiction over the vials as part of the estate under the statutory definition.21
The decedent's cryogenically preserved sperm constitutes property subject to the jurisdiction of the probate court.22
Whether the superior court could properly order destruction of the sperm by applying the terms of the will, the storage agreement, or the settlement agreements?23
A probate court may not order destruction of estate property by applying the terms of a will, storage agreement, or settlement agreement when those instruments direct distribution to the petitioner rather than destruction.24 No evidentiary hearing has established invalidity, undue influence, or lack of capacity.25
No. The will names Hecht as executor and bequeaths the sperm to her with an express statement of wishes that she use it to conceive.26 The storage agreement authorizes release to the executor or at the executor's request.27 Both settlement agreements provide for assignment of any estate interest in the sperm to Hecht.28 The record contains no evidentiary hearing on claims of invalidity or undue influence that might support a different result.29
The superior court could not properly order destruction of the sperm by applying the terms of the will, the storage agreement, or the settlement agreements.30
Whether California public policy prohibits artificial insemination of an unmarried woman?31
Civil Code section 7005, subdivision (b), derived from the Uniform Parentage Act but deliberately omitting the word 'married,' affords unmarried as well as married women a statutory vehicle for artificial insemination without fear of donor paternity claims.32 No statute or precedent establishes a policy against single-parent families or access by unmarried women.33
No. The Legislature excluded the word 'married' from the nonpaternity provision of Civil Code section 7005, subdivision (b), thereby extending the statute to all women.34 The custody statute cited by real parties addresses post-separation parental contact and does not prohibit formation of single-parent families.35 No authority supports a judicial policy barring unmarried women from artificial insemination.36
California public policy does not prohibit artificial insemination of an unmarried woman.37
Whether California public policy prohibits the use of a decedent's stored sperm for posthumous artificial insemination of his surviving girlfriend?38
No statute reveals a public interest sufficient to justify state interference with the gamete providers' joint decision to conceive posthumously.39 The Uniform Parentage Act and Probate Code sections 6407 and 6408 address paternity and intestate succession without barring posthumous conception.40 Courts may not create policy inhibiting reproductive technology absent legislative direction.41
No. Kane executed documents and a letter expressing intent that Hecht use the sperm to conceive after his death.42 Hecht seeks to exercise that intent.43 Real parties cite no statute establishing a policy against posthumous conception or protecting adult children from after-born half-siblings.44 The Supreme Court has recognized that the fundamental rights of procreation and privacy counsel against judicial inhibition of reproductive technology when the Legislature has not acted.45
California public policy does not prohibit the use of a decedent's stored sperm for posthumous artificial insemination of his surviving girlfriend.46