Court Rules Sperm Can Be Bequeathed

In a precedent-setting decision that a deceased man is allowed to potentially father a child, a state Court of Appeal in Los Angeles has ruled that a man had a right to bequeath his frozen sperm to his lover for impregnation.

The three-judge panel ruled late Thursday that under the state probate code, William E. Kane had a property interest in his frozen sperm and could do with it what he wished.

Kane’s interest in frozen sperm vials he left at a cryogenics bank, “even if not governed by the general law of personal property,” should be entitled to “special respect because of their potential for human life,” according to the decision.

The ruling was hailed by several legal scholars.

“I think it’s a good decision,” said Arthur Caplan, director of the Center for Biomedical Ethics at the University of Minnesota. “Public policy should look toward giving authority over what to do with reproductive materials to the person from whom they originate.”

The decision is consistent with “the general trend of how courts have looked at these issues of new reproductive technology,” said Rebecca Dresser, a professor at Case Western Reserve Law School in Cleveland, who also is a bioethics expert.

The scholars said the decision represents another significant step in the law of bioethics as courts move into unchartered territory where science has outpaced the law.

The unanimous appeals court decision overturned a ruling by a Los Angeles Superior Court judge who, in response to a request from Kane’s two adult children, ordered that the sperm be destroyed, but stayed his order pending the appeal. The children have contested the claims of Kane’s companion, Deborah E. Hecht of Santa Monica, to the sperm.

Hecht’s lawyer, Marvin L. Rudnick of Pasadena, said he was thrilled by what he described as a landmark, far-reaching ruling.

“This is the first time in history that an American court has ruled that sperm is property, that it can be willed and that a deceased person can father a child,” Rudnick said.

“Deborah just wants to have her baby,” the attorney added. “We hope that this decision puts her on that path.” However, the ruling does not guarantee that Hecht will obtain the sperm because the appeals court ordered further hearings in probate court. While Kane can legally do what he wants with his sperm, the probate hearing will examine whether he intended the sperm to go to Hecht.

Kane’s children argued that their father changed his will about a month before he died and that Hecht, with whom he lived, was exerting undue influence on him at the time. They also contend in a wrongful-death suit that she could have prevented his suicide. Hecht heatedly denies the accusations.

Pasadena attorney Susan M. Irwin, Kane’s former wife, who represents the children in the suit, said she will ask the state appeals court for a rehearing or ask the California Supreme Court to review the decision. She said that the 46-page ruling “certainly does not resolve the question of the ultimate disposition of William Kane’s sperm.”

Kane, who committed suicide in a Las Vegas hotel Oct. 30, 1991, left 80% of his estate to his two children and 20% to Hecht. Kane willed vials of his sperm to Hecht for her use “should she so desire . . . to become impregnated with my sperm.”

In a letter Kane wrote to his children nine days before his suicide, he made clear his desire that Hecht impregnate herself and have their child:

“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.”

Kane’s son and daughter, William E. Kane Jr. and Katharine E. Kane, have contended that the sperm should be destroyed to prevent the birth of children who “will never know their father” and could not be raised within a traditional family.

They also say that allowing Hecht to impregnate herself with Kane’s sperm would impose emotional, psychological and financial stress upon them.

But Justice Mildred M. Lillie wrote that there was no “authority establishing the propriety of this court, or any court, to make the value judgment as to whether it is better for such a potential child not to be born assuming that both . . . providers wish to conceive the child.”

Lillie also said that Kane’s children failed to prove their contention that the birth of a child through artificially inseminating Hecht would adversely affect their “fundamental right to protection of their family integrity, and thus their psychological well-being.” Her decision was joined by Associate Justices Earl Johnson Jr. and Norvell F. Woods Jr.

Lillie’s opinion said the justices were aware of only one other court that has addressed the issue of the right of a woman to the sperm of a dead man, a 1984 French decision in which a government-run sperm bank in a Paris suburb was ordered to return stored sperm to a surviving wife.

The California judges approvingly noted the language of the French decision, which said: “The fate of the sperm must be decided by the person from whom it is drawn. Therefore, the sole issue becomes that of intent.”

USC law professor Michael H. Shapiro said the opinion noted that there is no stipulation in California law barring single women from being artificially inseminated and no prohibition on posthumous reproduction.

In essence, Shapiro said the justices ruled that “unless you can show us some public policy reason against this, people should be able to make their own reproductive decisions.”

While praising the decision, Caplan expressed some reservations: “I think that one of the difficulties in this area of new reproductive technology--cryogenetically preserving sperm--is that the law is struggling to fit this into a property framework. I don’t think it’s a good fit.

“We ought not treat what are basically the blueprints of potential human beings as property on a par with a beachfront home or a beer can,” Caplan said.