Widow cannot use husband’s frozen sperm

The Court of Appeal of the State of California Third Appellate District has recently ruled in Kievernagel v. Kievernagel that a widow does not have the right to use her deceased’s husband’s frozen sperm to conceive a child because her deceased husband had signed an agreement with the company storing the frozen sperm which provided for the sperm to be discarded upon his death.

Joseph Kievernagel and Iris Kievernagel were married in 1995.  During their ten year marriage, they disagreed on whether to have children — Iris wanted children but Joseph did not.  Iris “won” the argument and the couple attempted to conceive the “normal” way but were unsuccessful.  Thus, they went to a fertility clinic for assistance.  Joseph supplied the sperm for in vitro fertilization in June 2005 shortly before his death in July 2005.

Iris attempted to obtain custody of the sperm but the lower court said no because Joseph had checked a box on the form indicating that he wanted his sperm discarded if he died.

Iris appealed claiming that Joseph did not read the form before he checked the box and signed it.  She also claimed she had a constitutional right to reproduce with his sperm.

The court rejected her argument stating Joseph’s intent was controlling.

The court indicated that the result could be different if a frozen embryo were involved which would contain the genetic material of two donors.  Also, the court explained that her right to reproduce was not compromised because she could reproduce with the sperm of men other than Joseph.

See also Bob Egelko, Widow can’t use husband’s frozen sperm, SFGate.com, Sept. 13, 2008.