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MKERT Healthcare Liability Team Wins Landmark Appeal Prohibiting Posthumous Conception without Deceased Donor's Consent

In a decision published earlier this month, a California appeals court has ruled that in cases involving a loss of stored gametic material, such as cryogenically preserved sperm or eggs, plaintiffs may not seek damages based on their lost ability to conceive if the plaintiff had no legal right to use the materials for procreation. While seemingly arcane, this decision serves to reinforce the important principle in California law that egg and sperm donors cannot be made parents posthumously without their consent. 

The decision also affirmed the trial court's dismissal of all claims brought by the plaintiff against our client, the owner of a human tissue storage facility, who faced the possibility of a multi-million dollar loss had the case gone to trial. Healthcare Liability Team Leader Lou Pappas and Appellate Law Partner Steve Renick litigated the case to victory at the trial court level with Mr. Renick overseeing the case before the Court of Appeal.

The plaintiff brought suit against our client after she discovered that her late husband's sperm, which she had stored at a facility our client subsequently purchased years later, could not be located. As she intended to use the material to conceive children with her husband ten years after his death, her suit sought substantial damages, commensurate with a loss of the ability to have children.

Her legal right to use her dead husband's sperm to conceive - and even her right to have extracted his sperm in the first place - was dubious from the outset. The plaintiff convinced her late husband's doctors to extract sperm from him while he was terminally ill and in a coma following a stroke. Despite being unconscious and unable to consent to or even have awareness of the extraction procedure, the plaintiff  claimed that his consent could be inferred from the fact that they had always planned on having children and producing cards and letters from him as proof of this. But as our team demonstrated to the court, all of the evidence documented only her husband's desire to have children with his wife while he was alive; there was no mention of any desire to have children conceived after his death.

Armed with this reasoning and several additional arguments, Mr. Pappas, Mr. Renick and their  team went to work in the trial court attacking the validity of the claims brought against our client. When the dust had settled after four rounds of complaints from the plaintiff and our team's responses as to why her claims in each iteration had no merit, the court had dismissed all of her causes of action. At that point, the plaintiff filed an appeal of the dismissals.

Before the Court of Appeal, Mr. Renick mounted a vigorous defense of each of the trial court's dismissals of the plaintiff's claims, buttressing the position that she had no valid cause of action to sue our client as a matter of law. As a coup de grace, the team went on to argue that even if the appeals court disagreed and reversed some of the trial court's dismissals, the plaintiff's case would still fail, as her demand for damages was based on the loss of the opportunity to procreate using her husband's stored sperm, an opportunity she had no right to exercise in the first place. Without this injury to claim, the plaintiff could not justify her demand for the massive monetary damages she had included in her suit..  And so the case would still require dismissal, even if the justices reversed any of the trial court's dismissals.

Agreeing with this logic in their published decision, the appeals court affirmed the dismissals ordered by the trial court, preserving the victory for our client while establishing law that reinforces a donor's sole right under California law to control the use of his or her gametic material for the purpose of procreation.

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