What are the rights of a widow to the frozen sperm of her husband?  That is an issue that I as a probate attorney have never had brought before me, but if and when it does, I will be prepared.

That question was partially answered in 2008 by a California Court of Appeal when it ruled that a husband’s signed agreement wherein he directed the company storing his frozen sperm to discard it upon his death was controlling.

The decedent, died in a helicopter crash in 2005.  His widow had been appointed in California probate court the administrator of her husband’s estate.  She sought a court order requiring the Northern California Fertility Medical Center to release the sperm to her.

The Court ruled that for postmortem reproduction, the probate court’s reliance on the agreement to determine that the husband did not want his widow to make use of his sperm after his death was valid.

The Court wrote “that gametic material, with its potential to produce life, is a unique type of property, and that it is not controlled by those laws that control personal property.  The court ruled that the superior court’s relying on the decedent’s intent was proper and in line with California law.

Moreover, the Court stated that this ruling did not harm the widow’s right to procreate.  The court distinguished frozen sperm from frozen embryos which result from two donors.