A New York State appeals court has ruled that the parents of a man who died from cancer over a decade ago cannot use his frozen sperm to conceive a grandchild. Mark Speranza deposited his sperm in a tissue bank six months before his death in the hope that he would be able to father a child if he survived his battle with the disease. 

The Appellate Division, 1st Department, has now issued an unprecedented and unanimous ruling against Mark Speranza's parents' intention to artificially inseminate a surrogate mother with their dead son's semen. They decided it would 'fundamentally violate' a New York State Department of Health regulation, which requires that any semen donor be 'fully evaluated and tested' prior to the use of his semen 'by a specific recipient, other than his current or active regular sexual partner'. Mark Speranza received no such tests prior to his death. 'Since the purpose of this statute is to protect the surrogate mother, and thereby the general public, from disease, we cannot countenance avoidance of the regulations' dictates, even though we recognize the joy that ignoring the regulations could bring to plaintiffs'. Justice David B. Saxe wrote for the panel in 'Speranza v. Repro Lab Inc., 5121N'.

Mark Speranza was 23 years old when he deposited his semen at Repro Lab in July 1997 and signed agreements instructing the tissue bank to destroy the sperm if he died. In January 1998, his parents learnt of the samples whilst acting as administrators of his estate and sorting through his belongings. They contacted Repro and asked them not to destroy the sperm and the lab's president, Awilda Grillo, agreed on the condition that Mark's parents continued to pay the annual storage fee of $400. After the Speranzas had located a surrogate in 2005 the tissue bank refused to hand over the samples, citing the form that Mark had signed as the reason. 

The parents maintained that Repro had waived any obligation it had to destroy the sperm as it effectively terminated its agreement with their late son when it began accepting the yearly payments. However, on January 30, 2007, the Acting Supreme Court in Manhattan, Justice Jane S. Solomon, ruled that the Speranzas had no 'ownership interest' in the sperm and last Tuesday the Appellate Division agreed and upheld the ruling. This clears the legal path for the destruction of the sperm but Repro has agreed to preserve the samples until the Speranzas' have exhausted all their judicial options. Kerry J. Katsorhis, the Speranzas' lawyer, said he was disappointed by the appellate decision and that his clients would review their options and decide within a couple of weeks whether they wish to appeal further.

Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.