Widow Wins Case against Fertility Clinic That Gave Her Husband’s Sperm to His Mistress

Doctor and couple in fertility clinic Photo Source: Adobe Stock Image

Any soap opera writers looking for steamy ideas for their next plot need look no further than a recent case from a California district court. It has all the elements that make for addictive, shocking drama – a bereaved widow, a fight over the frozen sperm of her deceased husband, and a lawsuit against the fertility clinic that gave the frozen semen to the dead husband’s mistress who received in-vitro fertilization, then got pregnant and delivered twins. Tune in for more!

Kathy Pesic sued the Zouves Fertility Clinic (the Clinic) in Foster City for conversion in 2014, after it gave Ivan’s stored sperm to his long-time mistress and former employee, Joyce Chin. Kathy and Ivan had been married for 33 years when he died in 2012 (the Pesics will be referred to by their first names to avoid confusion). When Ivan died, he left all his property to Kathy. The Pesics had co-founded a software company called Silvaco in 1984. Chin worked there as an accountant between 1995 and 2013. Her affair with Ivan began in 2004. They had a child together in 2006.

In 2010, shortly after Ivan began chemotherapy for colon cancer, he and Chin began visiting the Clinic and seeing Dr. Cristo Zouves, a reproductive endocrinologist. They told him they were married. The couple told him they wanted more children. Because chemo can adversely affect sperm and because Ivan had a low sperm count, Zouves banked Ivan’s sperm in 2011. Kathy knew nothing about either the extramarital affair or the contract that Ivan and Chin had signed with the Clinic.

The key issue in this case is how to interpret the contract between Ivan, Chin and the clinic and who, if anyone, is entitled to damages. Lawsuits between Kathy and Chin were settled separately, with Kathy agreeing to pay Chin $1.8 million in child support.

A three-judge panel from California’s Sixth District Court of Appeal upheld the trial jury’s verdict that held the Clinic liable. Justice Charles Edward Wilson, who wrote the court’s unpublished opinion, reversed the trial court’s 2019 judgment notwithstanding the verdict (JNOV) and ordered a new trial solely on the issue of damages.

The cryopreservation agreement between Ivan, Chin and the Clinic governed the storage and use of the frozen sperm for one year. Contract language required the contract to be renewed and clearly said that the “failure to renew the contract will result in the semen being thawed and discarded.” It placed renewal responsibility on the couple and also detailed options that were available if either party was to die during the storage period. The unmarried couple chose the option that gave Chin the exclusive right to either discard the sperm or use it for IVF. Ivan’s sperm was then frozen on seven occasions.

A death certificate was required in order for Chin to exercise the chosen option. However, after the one-year deadline, Ivan and Chin never paid to renew the agreement. A few days after Ivan’s death, Chin visited the Clinic with new forms, including one that requested a donor egg be used in the next IVF. At trial, she admitted she had forged Ivan’s signature on the form after his death. When Chin visited the clinic for IVF, she did not bring a copy of the required death certificate and she did not tell Dr. Zouves that Ivan had died. Nevertheless, Zouves performed the IVF. Chin got pregnant in November 2012 using donor eggs. She subsequently delivered twins.

Kathy sued the Clinic for conversion in 2014. Conversion is an intentional tort that results when one party takes the property of another with the intent of depriving the holder of it. As the beneficiary of all of Ivan’s property, Kathy said she owned his sperm. Kathy won. The jury found in her favor and awarded her $800,000 in damages.

The Clinic moved for a JNOV and a new trial for liability and damages based on the agreement that had been made between it, Ivan and Chin. The trial court agreed and both motions were granted. Kathy appealed, saying the clinic did not have the right to use the frozen sperm and the jury’s findings were supported by substantial evidence. The Clinic cross-appealed, saying Kathy did not own Ivan’s sperm and arguing that Kathy’s damage award, primarily based on attorneys’ fees, was unsubstantiated.

Wilson reviewed the issues present in all the appeals, most of which centered on whether the cryopreservation agreement “unambiguously gave Zouves the right to use Ivan’s frozen sperm,” proof of which would defeat Kathy’s conversion claim. He explained that the standard of review for a JNOV by an appellate court is “to determine whether any substantial evidence –contradicted or uncontradicted –supports the jury’s conclusion.” Using this standard, he determined that the agreement unambiguously detailed when the storage period ended and that the frozen sperm must be thawed and discarded after that. In addition, there was no ambiguity about a certified copy of a death certificate required in order to use sperm after the donor died. He concluded that the Clinic committed conversion.

In conclusion, because the one-year agreement had expired and was not renewed, Justice Wilson wrote, the court agreed that the clinic did not have the right to use Ivan’s sperm after his death without reviewing the death certificate. It was, however, appropriate to grant a new trial as to damages because Kathy’s attorney billings were improperly admitted due to a lack of foundation.

With this, the court concluded its examination of Pesic v. Zouves Fertility Clinic. The sequel will be back next season, but only on the less exciting subject of damages.

Maureen Rubin, J.D.
Maureen Rubin, J.D.
Maureen Rubin is an Emeritus Professor of Journalism at California State University where she taught media law and writing and served as an administrator. Previously, she worked in the Carter White House and U.S. Congress, She is a graduate of Catholic University Law School and holds a Master's from USC.
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