Widow Loses Bid to Use Late Husband's Sperm Print

 

Joseph Kievernagel

Joseph Kievernagel is not going to be a posthumous father –- despite the wishes of his widow, who claims she is entitled to conceive a child with his frozen sperm.

The Sacramento County, Calif., sheriff's deputy was killed in a July 2005 helicopter crash, leaving behind a vial of sperm that his widow, Iris Kievernagel, described in a court document as an “asset of no financial value” but “of immense sentimental value.”

The couple had begun in vitro fertilization at a fertility center and, after Joseph's death, Iris filed a petition in probate court to have the sperm distributed to her.

But in their contract with the clinic, Joseph checked the box indicating the sample should be discarded upon his death rather than donated to Iris. And the California 3rd District Court of Appeal this week upheld a probate judge who denied her petition.

“[I]n determining the disposition of gamete material, to which no other party has contributed and thus another party’s right to procreational autonomy is not implicated, the intent of the donor must control,” the opinion said.

Joseph's parents opposed the petition, arguing that the contract was a valid expression of his wish not to father a child posthumously.

In the seminal (pun intended) case of Hecht v. Superior Court, 16 Cal.App.4th 836 (1993), a California appeals court found that a deceased man possessed a sufficient interest in his frozen sperm to bequeath it to his girlfriend. William Kane had indicated in his will that he wanted to have posthumous children with Deborah Hecht.

Iris Kievernagel argued that a surviving spouse has a right to procreate and the appeals court should follow the precedent of a case in which a divorcing couple could not agree on the disposition of cryogenically-preserved preembryos stored by a fertility clinic.

The Tennessee Supreme Court applied a balancing test in Davis v. Davis, 842 S.W.2d 588 (1992), ruling that “Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the preembryos in question.”

But the 3rd District refused to deviate from the donor intent rule of Hecht and weigh Iris Kievernagel's interests against those of her late husband. “The probate court found by a preponderance of evidence that it was Joseph’s intent that his sperm be discarded upon his death,” Justice Fred K. Morrison wrote. “That finding was sufficient.”

The case, Morrison concluded, was distinguishable from Davis because “there is only one gamete-provider ... Only Joseph had 'an interest, in the nature of ownership, to the extent that he had decisionmaking authority as to the use of his sperm for reproduction.'”

An attorney for Iris Kievernagel said the court failed to consider “the near-impossibility of determining someone's intent when they pass away” and leave no will. But any appeal to the California Supreme Court is unlikely to overcome the evidence of the checked box.

Joseph Kievernagel, 36, died while on aerial patrol with another sheriff's deputy. The probate judge found he was opposed to having children, but agreed to fertility procedures because of his wife's strong desire for children.

By Matthew Heller
9/16/08