Opinion
400532/06.
October 13, 2006.
DECISION, ORDER and DECLARATORY JUDGMENT
This motion for a preliminary injunction arises from the underlying declaratory judgment action brought by the parents of the late Mark Speranza, in their capacity as the administrators of his estate. On or about July 30, 1997, Mark deposited a number of semen samples for storage with defendant tissue bank. Mark died on January 28, 1998. Mark's parents now seek possession of those samples, so as to use them in the artificial insemination of a surrogate mother. The motion seeks to enjoin defendant from destroying the samples. The parties have stipulated that defendant will not destroy the samples pending the determination of this motion and the entry of an order thereon.
Subpart 52-8 of the New York State Department of Health regulations ( 10 NYCRR 52-8.8 [b]) requires that reproductive tissue banks, such as defendant, obtain written informed consent from client-depositors, including, in the case of male depositors, specific instructions for disposition of frozen semen upon the depositor's death. At the time that Mark deposited the samples, he specified that they were to be destroyed at his death. The form upon which he so specified constitutes a contract between him and defendant, and it provides that the agreement as to the ultimate disposition of the specimens "shall be binding upon the parties and their respective assigns, heirs, executors and administrators." Grillo Aff., ¶ 3, and Exh. A. 10 NYCRR § 52-8.8 (b) also requires that reproductive tissue banks "maintain and adhere to written procedures for ensuring that the client-depositor's instructions are followed." Upon Mark's death, however, plaintiff Mary Speranza persuaded non-party Awilda Grillo, the president of defendant company, not to destroy the specimens at that time. Plaintiffs have now paid storage charges for eight years, while gradually coming to the decision to use the samples for the purpose described above.
The considerations taken into account in deciding whether to grant preliminary injunctive relief are present, here, in an unusually stark fashion. The harm that plaintiffs seek to avert, to wit, the destruction of the semen samples, would be utterly irremediable. At the same time, the likelihood of plaintiffs' success on the merits is almost nil. Were this solely a private dispute, a court might well reform the contract, holding that, having failed to comply with Mark's instructions and having accepted storage charges from plaintiffs for eight years, defendant has put the specimens at plaintiffs' command. Ms. Grillo, who does not argue to the contrary, takes the position that, against his better judgment, he was prevailed upon by Mark's bereaved mother not to destroy the samples, and that he would like nothing better than to have the court direct him as to their disposition.
However, as Ms. Grillo points out, there is a problem as to the merits, in addition to that of overriding Mark's instructions. 10 NYCRR § 52-8.6 (g) provides that:
A client-depositor who wishes to direct stored semen for use by a specific recipient, other than his current or active regular sexual partner, shall first be fully evaluated and tested in accordance with the requirements of . . . subdivisions (b), (c), (d), and (f) of this section. Tissue from such client-depositors shall not be released unless stored for at least six months prior to such testing.
The tests required by this subpart include blood tests which, obviously, cannot now be performed. Consequently, defendant cannot lawfully release the semen samples to plaintiffs, and the court will not order the performance of an unlawful act. In these circumstances, the court will search the record, and upon such search, issue a declaratory judgment.
Accordingly, it is hereby
ORDERED that the motion for a preliminary injunction is denied; and it is further
ADJUDGED and DECLARED that plaintiffs have no legal right to the semen specimens of their deceased son that are in the possession of defendant; and it is further
ADJUDGED and DECLARED that said specimens are not assets of the Estate of Mark Speranza; and it is further
ORDERED that this order and declaratory judgment is stayed for 30 days after entry thereof.