Widow can't use husband's frozen sperm to conceive, court rules
SACRAMENTO -- Iris and Joseph Kievernagel disagreed about having children during their 10-year marriage, and their argument moved into the courts - and the casebooks of legal precedent - after his death in a helicopter crash.
In a ruling made public Friday, a state appeals court said the Sacramento County woman has no right to use her husband's frozen sperm to become pregnant because he had made it clear he did not want to father a child posthumously.
If only one spouse has contributed genetic material, "the intent of the donor" must control its disposition after death, said the Third District Court of Appeal in Sacramento. The situation would be different, the court said, if the dispute involved frozen embryos - fertilized eggs - which would require that both spouses' wishes be considered.
Lawyers in the case said only one previously recorded California ruling, in 1993, had discussed the rights of a surviving spouse or partner to custody of frozen sperm.
The new ruling "provides some much-needed guidance in an area where reproductive technology has clearly outstripped the legal system," said Jay-Allen Eisen, lawyer for the husband's parents, who opposed the widow's request.
Suzanne Alves, a lawyer for Iris Kievernagel, said the court failed to address "the near-impossibility of determining someone's intent when they pass away" and leave no will, as was the case with Joseph Kievernagel. She said her client would consider an appeal to the state Supreme Court.
Joseph Kievernagel, 36, of Citrus Heights, was one of two Sacramento County sheriff's deputies killed when their helicopter crashed into a hillside near Lake Natoma east of Sacramento in July 2005.