HECHT v. KANE

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Court of Appeal, Second District, Division 7, California.

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.

No. B097742.

Decided: November 13, 1996

J.R. Nerone, Reseda, for Petitioner. Sandra McMahan Irwin, Pasadena, for Real Party in Interest.

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   In an unpublished section of this opinion we also reject three fall-back arguments real parties raised in their briefing.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 (Hecht v. Superior Court (1993) 16 Cal.App.4th 836, 840–845, 20 Cal.Rptr.2d 275) 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.  (16 Cal.App.4th at p. 840, 20 Cal.Rptr.2d 275.)

(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.”  (16 Cal.App.4th at p. 840, 20 Cal.Rptr.2d 275.)   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.”  (16 Cal.App.4th at p. 840, 20 Cal.Rptr.2d 275.)   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.”  (16 Cal.App.4th at p. 841, 20 Cal.Rptr.2d 275.)

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.  (Hecht v. Superior Court, supra, 16 Cal.App.4th 836, 861, 20 Cal.Rptr.2d 275.)

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.   He based this refusal on a theory the appeal stayed Judge Gold's order.

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 because the probate court properly found Hecht's situation fulfilled the requisites of Probate Code section 7241(b).1  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.  (Kane v. Superior Court (1995) 37 Cal.App.4th 1577, 1587, 44 Cal.Rptr.2d 578.)

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.   After ordering a settlement conference, which proved unsuccessful, 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 heard oral argument and reached a tentative decision on the legal issues the parties briefed.   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.

The supervising judge of probate court, over petitioner's objection, assigned this reference to Judge Ross.   Judge Ross held the required hearing and submitted a report to this court on July 22, 1996.   In this report, Judge Ross summarized the evidence and tendered his findings that decedent lacked the required capacity to make valid donations of the sperm to Hecht and furthermore decedent only made those donations because he was under Hecht's undue influence.

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 principles enunciated in our first opinion in this case, authored by Presiding Justice Lillie, largely resolve this fundamental issue.   As that opinion highlighted, 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.   Rules appropriate to the disposition of the latter are not necessarily appropriate for the former.   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 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.”  (16 Cal.App.4th at p. 857, 20 Cal.Rptr.2d 275, quoting from Shapiro & Sonnenblick, The Widow and the Sperm:  The Law of Post–Mortem Insemination (1983) 1 J. Law and Health 229, 232, italics added.)

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.   Such a term, even if explicit in the settlement agreement, would violate not only the decedent's express intent but also his most “fundamental right”—to choose the genetic inheritance he leaves on this earth.   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.

In the opinion Justice Lillie wrote, this court established a further but related principle.   We held, “assuming that both Hecht and decedent desired to conceive a child using decedent's sperm, real parties [in that writ proceeding and this] fail to establish a state interest sufficient to justify interference with that decision.”  (16 Cal.App.4th at p. 858, 20 Cal.Rptr.2d 275.)   Indeed we held “ ‘no other person or entity has an interest sufficient to permit interference with [Hecht and decedent's] decision․” 2  (Ibid., italics added.)

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.’ ”  (16 Cal.App.4th at p. 857, 20 Cal.Rptr.2d 275.)

As the opinion Justice Lillie crafted establishes without question (and as the record of this writ petition proves) there is no question whatsoever about the decedent's expressed intent.   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.

II.–IV.***

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.   Good cause appearing this decision shall become final 10 days after the date hereof.  (Cal. Rules of Court, 24d.)

Petitioner to receive costs.

I am concurring separately over concern for possible misinterpretation of language that appears in this opinion on pages 226 and 227 as follows:  “In the opinion Justice Lillie wrote, this court established a further but related principle.   We held, ‘assuming that both Hecht and decedent desired to conceive a child using decedent's sperm, real parties [in that appeal and this] fail to establish a state interest sufficient to justify interference with that decision.’  (16 Cal.App.4th at p. 858, 20 Cal.Rptr.2d 275.)   Indeed we held ‘ “no other person or entity has an interest sufficient to permit interference with [Hecht and decedent's] decision․” ’  (Ibid., italics added.)”

I was comfortable with the language in our initial opinion authored by Justice Lillie, to which Justice Johnson makes reference in this opinion as indicated above, since it appeared to be written tightly enough to indicate strict application to the facts in the case before us, namely, one involving an arrangement between the personages of William Everett Kane and Deborah Ellen Hecht for a donation of Kane's sperm to Hecht, following Kane's demise.   In reading our opinion crafted in this case by Justice Johnson, I am no longer confident that misconstruction of our opinion authored by Justice Lillie at 16 Cal.App.4th 836, 858, 20 Cal.Rptr.2d 275 would not occur.

On second reflection, when we held in Hecht v. Superior Court (1993) 16 Cal.App.4th 836, 858, 20 Cal.Rptr.2d 275, by quoting from Davis v. Davis (Tenn.1992) 842 S.W.2d 588, 602, that “no other person or entity has an interest sufficient to permit interference with the gamete-providers' decision ․ because no one else bears the consequences of these decisions in the way that the gamete-providers do.” (emphasis added), I become apprehensive that the reader might construe the language to mean that no “entity,” state or otherwise, can ever have sufficient interest to interfere with donations of human gametal material.   I do not perceive this to be the intention of our initial decision, nor a desirable result thereof.

Although I possess a good dose of Orwellian 1 caution when it comes to governmental interference in such intimate matters as the Hecht/Kane arrangement in this instance, I am not convinced that the state as an entity is devoid of “any” sufficient interest to justify interference in such matters.   I would caution that our initial opinion and this opinion should not be construed beyond the facts of the instant matter.   It is beyond the capacity of this court to speculate on all of the consequences that might be spawned should our initial opinion and the opinion herein be construed too broadly.

For instance, and only by way of one example among many conceivable examples, can it be said that a state entity can never have a sufficient interest to interfere with reproduction by persons capable of producing only severely imbecilic offspring?   Oliver Wendell Holmes Jr. certainly thought so when he spoke his famous words on behalf of the majority of the Justices of the United States Supreme Court, “[t]hree generations of imbeciles are enough.” 2  I am convinced that a state entity may have a sufficient interest to intercede and prevent donations of gametical materials in very extreme instances under carefully regulated statutes.

In the final analysis, it is far more in keeping with the function of the legislature to explore what legislation might be needed to regulate gametic donations.   Courts are poorly equipped to address such an issue.   I encourage the legislature to immediately embark upon fixing a policy by legislation which will regulate and define the permissible parameters of gametic donations by individuals in this state.

With the proviso expressing caution against an overly broad construction of our initial opinion, and this one, I otherwise concur.

FOOTNOTES

1.   1 Probate Code section 7241 provides as follows:“(a) Except as provided in subdivisions (b) and (c), an appeal under Section 7240 stays the operation and effect of the order.“(b) Notwithstanding that an appeal is taken from the order, for the purpose of preventing injury or loss to a person or property, the trial court may direct the exercise of the powers of the personal representative, or may appoint a special administrator to exercise the powers, from time to time, as though no appeal were pending.   Acts of the personal representative or special administrator pursuant to the directions of the court made under this subdivision are valid, regardless of the result of the appeal.“(c) An appeal under Section 7240 does not stay the operation and effect of the order if the court requires an undertaking, as provided in Section 917.9 of the Code of Civil Procedure, and the undertaking is not given.”Probate Code section 7241 provides:“(a) Except as provided in subdivisions (b) and (c), an appeal under Section 7240 stays the operation and effect of the order.“(b) Notwithstanding that an appeal is taken from the order, for the purpose of preventing injury or loss to a person or property, the trial court may direct the exercise of the powers of the personal representative, or may appoint a special administrator to exercise the powers, from time to time, as though no appeal were pending.   Acts of the personal representative or special administrator pursuant to the directions of the court made under this subdivision are valid, regardless of the result of the appeal.“(c) An appeal under Section 7240 does not stay the operation and effect of the order if the court requires an undertaking, as provided in Section 917.9 of the Code of Civil Procedure, and the undertaking is not given.”

FOOTNOTE.   See footnote *, ante.

2.   In no sense do we suggest the Legislature is prohibited somehow from enacting legislation regulating the disposition of sperm or other genetic material which one person has donated to another or which persons otherwise generated and stored for use.   We merely observe no such statute exists and in the absence of legislation there is no state interest or private interest sufficient to justify judicial nullification of decedent's donation of his genetic material to Hecht.

FOOTNOTE.   See footnote *, ante.

1.   The reference is to Eric Arthur Blair (1903–1950), an English writer who wrote under the pseudonym of George Orwell.   In his political satire entitled “Nineteen Eighty–Four” (1949), Blair voiced distrust in all political parties and dictatorial governmental involvement in the lives of the governed.

2.   Buck v. Bell (1927) 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000, as follows:  “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.  Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765.   Three generations of imbeciles are enough.”   As a collateral matter, it appears to this concurring justice, in this example, that state interference at the point of a gametical donation seems to be far more humane than by way of vasectomy or salpingectomy, as countenanced in Buck.

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.