Metropolitan News-Enterprise


Monday, September 15, 2008


Page 1


Court Denies Widow’s Request for Husband’s Frozen Sperm


By STEVEN M. ELLIS, Staff Writer


The Third District Court of Appeal ruled Friday that a man’s signed agreement directing a company storing his frozen sperm to discard it upon his death took precedence over his widow’s right to procreate.

Affirming a decision denying distribution of the sample, the court ruled that a deceased donor’s intent controls in questions involving use of gamete material for postmortem reproduction, and that the probate court’s reliance on the agreement to determine the man did not intend his widow to make such use of his sperm was not error.

Joseph Kievernagel died in a helicopter crash in 2005, and his wife of 10 years, Iris Kievernagel, was appointed administrator of his estate. Seeking release of the frozen sperm from the Northern California Fertility Medical Center, she petitioned for distribution of what she described as an asset of “no financial” but “immense sentimental value.”

Contrary to Wishes

The fertility center, however, declined to release the sample without a court order, and Kievernagel’s parents objected, contending that distribution was contrary to their son’s wish, as evidenced by the agreement, that his sample be discarded upon his death.

As part of a contract for in vitro fertilization, the fertility center had required Kievernagel to store the frozen sample as a backup in case his live sperm could not be used on the day of insemination. The center had also required him to sign the agreement, which provided that the sample was his sole and separate property, and that he retained all authority to control its disposition.

The agreement provided for two dispositional options upon death or divorce: donating the sample to Kievernagel’s wife, or discarding it. Kievernagel chose the latter and initialed next to his selection, and his wife signed the agreement, acknowledging the sample as her husband’s sole and separate property.

Sacramento Superior Court Judge Jerilyn Borack found on undisputed evidence that the pair had “loved each other deeply and completely,” but that Kievernagel had been opposed to having children despite his wife’s strong desire, which led to martial counseling.

Finding the key issue to be Kievernagel’s intent as to posthumous use of his sperm, Borack concluded on a preponderance of the evidence that the agreement demonstrated intent to stop the fertility process upon death by discarding the sample, and denied the petition.

Standard Challenged

On appeal, Kievernagel’s widow argued that Borack had erred in applying the Court of Appeal’s decision in Hecht v. Superior Court (1993) 16 Cal.App.4th 836—in which a probate court order requiring destruction of frozen sperm was overturned on the basis that the donor’s intent controlled in disposition after his death—because the case’s requirement of “unequivocal” intent set an unworkable standard.

She also contended the decision ignored the fundamental right of a donee spouse to procreate, and argued that the probate court should have applied a test set forth by the Tennessee Supreme Court in a dispute over disposition of frozen embryos, Davis v. Davis (1992) 842 S.W.2d 588, balancing the interest of a deceased donor against that of the surviving donee.

Asserting that her late husband’s procreative rights were based on his right to privacy, and therefore terminated on his death, Kievernagel’s widow reasoned that her relative interest prevailed.

‘Unique Property’

However, Justice Fred K. Morrison swept aside both arguments and upheld Borack’s decision.  Agreeing with the Hecht court “that gametic material, with its potential to produce life, is a unique type of property,” and thus not governed by general laws relating to personal property, he wrote that Borack’s reliance on Kievernagel’s intent was both proper, and consistent with other California laws.

Morrison also noted that the Hecht opinion used the term “unequivocal” in quoting a French case, but spoke only of the decedent’s “actual” intention, and he rejected Kievernagel’s contention that Hecht imposed any heightened standard to determine intent.

He then turned Kievernagel’s widow’s asserted right to procreate, and commented that Davis was inapplicable because Kievernagel’s frozen sperm—unlike frozen embryos, which are the product of two donees—implicated only Kievernagel’s decision-making authority.

“The disposition of Joseph’s frozen sperm does not implicate Iris’s right to procreative autonomy,” Morrison said. “That would be so only if she could show that she could become pregnant only with Joseph’s sperm.”

Justices Vance W. Raye and Ronald B. Robie joined Morrison in his opinion.

The case is Estate of Kievernagel, 08 S.O.S. 5494.


Copyright 2008, Metropolitan News Company