A California Court of Appeals has upheld a trial ruling that stated a woman has no right to use her dead husband’s sperm for in vitro fertilization.
The lawsuit was brought by Sarah Robertson, whose husband was afflicted with Marfan syndrome. The couple was married in 1995 and had discussed starting a family when medical technology existed to prevent the transmission of the disease to their offspring. Unfortunately, her husband suffered a stroke in 2004 and died a week later. Before his death, Ms. Robertson, with approval from UCLA’s ethics committee, requested the extraction of her husband’s sperm.
The court found that there was insufficient evidence of the husband’s consent to extract his sperm or to allow her the posthumous use of his sperm to procreate. Without his consent, the court found that Ms. Robertson had no legal claim.
The court distinguished the case from a previous ruling. In the prior case, the court allowed posthumous use of sperm where there was expressed authorization put in writing by the deceased.
The court also rejected a 2019 ruling from a case in New York. In that case, parents were allowed to extract sperm from their son for future use, with a surrogate, after he died in a skiing accident. The New York court based its ruling on the man’s previous statements about wanting to have a family and the fact that he was an organ donor. The California court did find this type of evidence persuasive.
This case highlights the differences regarding in vitro fertilization amongst the states. Couples who are considering in vitro fertilization would be well-served to put their desires in writing. This can help provide them with additional protection should an unforeseen tragedy occur. A skilled legal professional can help you protect your interests if you are considering using assisted reproductive technology.