A unique issue was decided this week by the First Department. In Speranza v Repro Lab Inc., 2009 NY Slip Op 01543, Plaintiffs, as administrators of their deceased son’s estate, sought possession from Defendant, Repro Lab, Inc., of frozen semen specimens that the Decedent deposited prior to his death. He apparently chose to deposit the specimens to preserve his ability to have children in the event that his cancer treatments resulted in infertility. Plaintiffs sought the specimens after their son’s death, in hope of ultimately having a grandchild by a surrogate.

Upon being contacted by Plaintiffs after the Decedent passed away in 1998, the Lab advised them that the specimens were intended for the Decedent’s own use and thus had not undergone the requisite screening to be donated to a member of the public. Nonetheless, it agreed to maintain the specimens as long as Plaintiffs continued to pay the yearly fee, which they did for several years. 

In 2005, Plaintiffs requested information from the Lab on obtaining the specimens for purposes of artificial insemination. Only at that time did Defendant produce a contract the Decedent signed, explicitly providing for the destruction of the specimens upon his death. This prompted litigation in which Plaintiffs alleged that the Lab’s acceptance of annual payments to preserve the specimens rendered them property of the estate, and requested a preliminary injunction to direct the Lab to continue preservation of the specimens pending the outcome of the action. 


The lower court denied the injunction and dismissed the action sua sponte. The rationale: the Decedent did not receive the medical tests for disease that the New York State Department of Public Health requires for donors of reproductive tissue pursuant to 10 NYCRR 52-8.6[g]. Plaintiffs appealed.

Although the Appellate Division was sympathetic to the circumstances presented, it determined that the law prohibited the relief that Plaintiffs requested. The Decedent’s chosen use for the specimens, as reflected by his contract with the Lab, rendered him a “client-depositor” as opposed to a “directed donor,” based upon the regulations of the New York State Department of Health (see 10 NYCRR 52-8.1). Consequently, extensive medical screening and testing requirements applicable only to “donors” were not conducted on the Decedent while he was alive (see 10 NYCRR 52-8.6[g]). The court concluded that it could not overlook such serious health and policy concerns aimed at protecting the general public from disease, and therefore held that the specimens could not be released to the estate. 

Despite the prohibitive restrictions imposed by the health regulations, Plaintiffs argued in favor of reforming or terminating the contract between the Decedent and the Lab to eliminate his direction to destroy the specimens upon his death. The court rejected this contention, explaining that reformation only applies where a contract fails to express the true agreement of the parties due to a mutual mistake. The agreement in issue was clear and unambiguous. Reformation could not be justified in light of such express terms.

The court also rejected Plaintiffs’ argument that Defendant’s acceptance of annual payments over a period of years without revealing the existence of the contract with the Decedent rendered the specimens property of the estate. While the court recognized that Plaintiffs may have a claim against the Lab because it did not destroy the specimens as it was required by contract to do, it determined that the applicable health regulations prohibited the estate from asserting any ownership rights.

In sum, the court opined that Plaintiffs failed to show either a likelihood of success on the merits to warrant a preliminary injunction, or any legal arguments to justify ultimate relief. Nonetheless, as empathetic as one may be to Plaintiffs’ plight, this decision appears to be consistent with the Decedent’s wishes, a factor always emphasized in cases affecting estates.