Legal News

Court: Frozen Sperm Off Limits to California Woman

By Dan Slater

On Friday, we addressed the problems associated with a judge ordering a woman, as a condition of probation, to abstain from having children. In another case that implicates reproductive law, Iris Kievernagel has been told by an appellate court in California that she can’t use her deceased husband’s frozen sperm to inseminate herself. Here’s the story from the San Fran Chron, and here’s the opinion.

Citing precedent for the proposition that the “the right of procreational autonomy is composed of two rights of equal significance–the right to procreate and the right to avoid procreation,” the court writes:

In this case we must decide whether a widow has the right to use her late husband’s frozen sperm to attempt to conceive a child where her late husband signed an agreement with the company storing the frozen sperm providing that the frozen sperm was to be discarded upon his death. We conclude that in 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.

According to the court, Joseph Kievernagel, a Sacramento County sheriff who died in a 2005 helicopter crash, wished not to father a child after death.

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. She said her client would consider an appeal to the state Supreme Court.

Interestingly, the court said 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.

Photo: iStockPhoto

Full post as published by Law Blog - WSJ.com on September 15, 2008 (boomark / email).