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Kievernagel v. Kievernagel (Cal. Ct. App. - Sept. 12, 2008)

By Shaun Martin

Who owns sperm? That may seem like a totally silly question. But it's not. And it matters.

Justice Morrison holds that the guy owns it, and that makes sense. Now, the guy can give the sperm away, of course. In a wide variety of ways. (And, no, I'm not going to provide a hyperlink for that last sentence.) And if he does, I assume whomever he gives the sperm to then has ownership rights, or at least partial ownership rights -- the complexities on that latter point are actually quite doctrinally interesting.

But let's take the facts here. The guy freezes the sperm because his wife desperately wants kids, and there's going to try IVF. The husband doesn't want kids -- the evidence about that is fairly clear -- but he's worried his wife will divorce him if he says no, so acquiesces. But when he fills out the form at the freezing place, a check is placed on the box that says that the sperm should be destroyed on husband's death, rather than the form that says the sperm should be given to the wife. The husband then unexpectedly dies in a helicopter crash. The wife then wants the sperm to have kids from her deceased husband, but the husband's parents say that both he and they don't want that. So who gets the sperm?

God. Destroyed. Because that was the husband's intent.

Even though I recognize that opinions may change over time, I'm pretty sure that Justice Morrison gets this one right. When you tell someone to freeze your sperm, but to whack it if and when you die, that's what you should get, absent anything else really compelling that proves you wanted something else. And there's none of that here.

So a death sentence for Joseph Kievernagel's sperm. But once that seems justified.

Rest in peace.

Full post as published by California Appellate Report on September 12, 2008 (boomark / email).