New judgment widow does not receive frozen sperm samples of her dead husband

OLG Munich: Postmortal personality rights would be violated
Munich (jur). A sperm bank does not have to give a widow the frozen semen samples of her deceased husband. The postmortem personality right of the dead man would be injured in the case of artificial insemination, judged on Wednesday, February 22, 2017, the Higher Regional Court (OLG) Munich (Az .: 3 U 4080/16). Moreover, the Embryo Protection Act, which seeks to protect the interests of the child, is contrary to that.

This provides for imprisonment of up to three years or a fine if someone "knowingly fertilizes an egg cell with the sperm of a man after his death".

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In the now decided case, a widow from Upper Bavaria had sued a sperm bank for the release of 13 sperm samples of her deceased husband. The man had during his lifetime the sperm cryopreserved there for later possible artificial insemination. According to the contract, the man was the "sole owner" of the sperm. With death the contractual relationship should end.

This actually came unexpectedly. The man died on 31 July 2015 as a result of a heart transplant. The widow still wanted to get pregnant by her husband. She started treatment in June 2014 at a "fertility center" to become pregnant. From the sperm bank she demanded the release of the semen samples of her husband.

The seed bank rejected this and referred to the penal provisions in the Embryo Protection Act. Otherwise one would be guilty of the aid, so the sperm bank.

The widow went to court and insisted on her right to privacy and the right to reproduction contained therein. The provision in the Embryo Protection Act is unconstitutional. She wanted to see and experience the genes of her deceased husband and her own in and on the child. This also outweighs the aspects that the child grows up without a father and later learns how it was conceived. The best interests of the child should be seen here as subordinate.

The Higher Regional Court ruled that the widow can not demand the surrender of semen samples. Even if she refers to her "right to reproduction," this does not mean that every human being has the right to reproduce.

Here is the possibility that the seed bank would be liable to prosecution for breach of the Embryo Protection Act. The local prohibition of artificial insemination with the seed of a deceased was also constitutional. The legislature has taken due account of the individual interests of men, women and children.

In particular, the legislator wanted to protect the best interest of the child. The fear of impairment of the child's well-being is real, even more so, the farther the date of the possible birth of the child would be from the date of death of the deceased husband. "In finding the child's identity, the idea could have a negative impact on descending from a deceased person at the time of conception," says the Higher Regional Court. The interest of a widow, possibly years after the death of her husband to be pregnant by this, must be on the other hand resign.

However, the plaintiff also ignores that the release of the sperm would violate the postmortem personality rights of her deceased husband. This had neither in the contract with the seed bank nor in his will made his will, that even after death his sperm should be used. Alone because of the lack of declared will of the deceased the widow should not dispose of the sperm samples, so the OLG in his already published written judgment. The appeal to the Federal Court of Justice in Karlsruhe allowed the OLG because of fundamental importance. fle / mwo