With the advent of modern science comes legal issues we never dreamed of in law school (at least if we went to law school in the seventies or earlier!). Witness the decision of the First Department of New York’s Appellate Division in Speranza v. Repro Lab Inc reported at 875 N.Y.S.2d 449. In affirming a decision of New York County Supreme Court Justice Jane Solomon,  it was declared that the administrators of the estate of the plaintiffs’ late son had no right to the semen specimens deposited in the defendant tissue bank  and the administrators would also not be entitled to an injunction against the destruction of the specimens.

The problem here is that the Speranza’s son Mark had deposited the semen specimens in 1997 prior to undergoing a surgery which he feared might have rendered him incapable of fathering a child in the future. After he died in 1998, his parents continued to pay an annual storage fee to the defendants who kept the specimens frozen in their tissue bank. In 2005, the parents began to seek a surrogate mother to bear a child using their late son’s specimens. The defendant lab refused to turn the samples over for this purpose and the estate sued to establish that it was the rightful owner of the specimens and was entitled to have them returned.

The court noted that the contract between the decedent and the defendant lab provided that the specimens be destroyed in the event of Mark’s death. This contract was found to be clear and unambiguous in setting forth the true intent of the decedent which was to have the specimens preserved so that he might father a child during his lifetime . This agreement also clearly precluded classifying Mark as a "donor"  (whose specimens might be used for reproductive purposes on a recipient other than his regular sexual partner) rather than as a "client-depositor" who  deposits a specimen for " potential use in artificial insemination or assisted reproductive procedures performed on his regular sexual partner"

Even though the court recognized and sympathized with  the desire of the decedent’s parents to have a surrogate bear his child after being artificially inseminated with the specimens, it found it was unable to reform the contract between Mark and the defendant lab to achieve this end, stating that "Reformation of a written instrument is available where, because of a mutual mistake of fact, the instrument fails to express the real agreement between the parties. The equitable remedy of reformation will not make a new agreement for the parties but, instead, will establish and perpetuate the true, existing contract by making the instrument express the real intent of the parties. Reformation is only available to correct a mutual mistake in order to conform an agreement to the original intent of the parties." Therefore, because the court felt that the intent of the parties was clearly spelled out in the contract, reformation was not an available option.