Family Law

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.

The court said he and his wife had a loving marriage, with one subject of disagreement: She wanted children and he did not. They nevertheless tried unsuccessfully to conceive a child and went to a clinic to begin in vitro fertilization in June 2005, but had not completed the procedure before his death.

His widow, administrator of his estate, sought custody of the vial of sperm he had deposited with the clinic. A Superior Court judge refused, citing the couple’s contract with the clinic in which a box was checked saying the sperm was to be discarded if he became incapacitated or died.

Iris Kievernagel appealed, saying her husband had signed the contract without reading it and had intended that she have his child. She also cited her constitutional right to procreate.

But the court said such rights must give way to her husband’s stated intent not to father a child after death. Quoting the 1993 California ruling, the court said the husband, as the donor, had “sole decision-making authority as to the use of his sperm for reproduction.”

Read the ruling

The appeals court’s ruling can be read at:

links.sfgate.com/ZEVH

Source for post: The San Francisco Chronicle