More than a decade after a fatally ill man deposited his sperm at a tissue bank, a New York appeals court has rebuffed the plea of his parents to use the sperm for conception of a grandchild, clearing the way for the destruction of the sample.

In a unanimous ruling, the Appellate Division, 1st Department, held that Mark Speranza’s parents’ proposal to use their dead son’s semen to artificially impregnate a surrogate would “fundamentally violate” 10 NYCRR 52-8.6(g), which requires sperm donors to be screened before their specimens are donated to the public.

“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.

When Mark Speranza deposited sperm samples at Repro Lab in 1997, he gave no reason for his donation, but signed an agreement directing the tissue bank to destroy the semen in the event of his death. Six months later, he died of cancer.

Speranza’s parents, Mark and Mary, learned about the sperm deposit while sorting through their son’s personal belongings.

The couple, who had been named administrators of their son’s estate, contacted Repro and asked the lab to refrain from destroying the sperm.

Awilda Grillo, Repro’s president, agreed, provided the Speranzas continued to pay the $400 a year storage fee.

In 2005, after locating a surrogate mother to bear their late son’s child, the Speranzas once again called the lab and asked how they could go about obtaining the semen.

Citing the form Speranza had signed when he gave the samples, Repro claimed it could not hand over the sperm. The couple subsequently sued Repro and sought a preliminary injunction to prevent Repro from destroying the sample.

The Speranzas maintained that by accepting their yearly payments, the tissue bank effectively terminated its agreement with their late son or waived any obligation it had to destroy his sperm.

However, on Jan. 30, 2007, Acting Supreme Court Justice Jane S. Solomon in Manhattan ruled that the Speranzas had no ownership interest in the sperm.

In denying the couple’s preliminary injunction and dismissing their suit sua sponte, she relied on 10 NYCRR §52-8.6(g), which provides that a sperm depositor whose semen will be used for a recipient, other than his “current or active regular sexual partner, shall first be fully evaluated and tested.”

Affirming Solomon’s decision, the 1st Department noted that “plaintiffs’ plight elicits sympathy,” but concluded that “other broader interests preclude giving plaintiffs possession of the specimens for purposes of engendering Mark’s biological child.”

OWNERSHIP INTEREST

The document Speranza signed when he deposited sperm “does not protect any possibility that his genetic or biological issue could be created after his death,” and “nothing in plaintiffs’ submissions would justify reforming the contract so as to permit” his parents to fulfill their wish of conceiving a grandchild, Justice Saxe wrote.

And while the tissue bank’s acceptance of yearly storage fee payments might give Speranza’s estate the right to bring a breach of contract claim against Repro for failing to destroy the sperm, such a breach would not give the estate an ownership interest in the semen samples, the judge wrote.

He observed that “the legal obligations with regard to the possession and handling of the semen specimens are dictated solely and completely” by state Health Department regulations. If screening measures designed to protect “against the spread of serious infections and potentially fatal diseases” cannot be adhered to, “the law bars use of the sperm,” Saxe concluded.

Justices Luis A. Gonzalez, John W. Sweeny Jr., Dianne T. Renwick and Leland G. DeGrasse joined the panel, which heard arguments on Jan. 8.

Arthur Lawrence Alexander and Danielle I. Pedras represented the tissue bank.

Alexander said his client will keep the sperm until “no other judicial avenues” exist for the Speranzas to appeal.

Kerry J. Katsorhis of Ginsberg & Katsorhris, who represented the Speranzas, called the ruling “dead wrong.”

He said in an interview that his clients have an ownership interest in the sperm and should be able to pay for the tissue bank to maintain the samples until tests are developed that can screen the samples for diseases.

Katsorhis said his clients have not decided whether to appeal.