Court denies widow's use of husband's frozen sperm
By Bill Lindelof
By Bill Lindelof
SACRAMENTO, Calif. — A state appellate court has decided that frozen sperm left behind by a deceased Sacramento County sheriff's deputy cannot be used by his widow to become pregnant.
Justices in the 3rd District Court of Appeal were asked to decide whether the widow, Iris Kievernagel, had the right to conceive a child from her late husband's frozen sperm.
Deputies Joseph Kievernagel, 36, and Kevin Blount, 29, died in a crash July 13, 2005. The helicopter they were in was responding to a burglary call when it went down near Lake Natoma, slamming into a hillside and rolling down a ravine.
Deputy Eric Henrikson, 31, survived the crash.
According to the court's opinion, issued Thursday, the Kievernagels were happily married for 10 years prior to the helicopter crash. The court noted, however, that Joseph Kievernagel "was opposed to having children, but agreed to the fertility procedures due to Iris's strong desire for children."
The couple had contracted with Northern California Fertility Medical Center to perform in vitro fertilization so that Iris Kievernagel could conceive.
The center operated a "sperm cryopreservation" storage program, collecting and storing sperm to temperatures as low as minus 196 degrees.
The center required that some of Kievernagel's sperm be stored, as a backup for the insemination procedure.
Joseph Kievernagel also signed the center's consent agreement that provided that the sperm was his sole property.
The agreement, according to court documents, also offered two options if Kievernagel were to die: donate the sperm to his wife or discard the sperm.
A box indicating the sperm should be discarded upon his death was checked and Joseph Kievernagel initialed it.
The Superior Court verdict was that Joseph Kievernagel's intent was to have his frozen sperm discarded. His widow appealed, saying her late husband didn't even read the sperm bank's agreement and that he had intended to have a child with her.
But the state appeals court said "the material at issue is Joseph's sperm, not a preembryo" and only Joseph has ownership.
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Suzanne Alves, a lawyer for Iris Kievernagel, said Saturday that her client is considering an appeal to the California Supreme Court.
"The problem I have with this court's decision is that they set a standard that we believe is unrealistic," Alves said. "They put on the widow the burden of proving the decedent's intent without a will."
Jay-Allen Eisen, lawyer for the late deputy's parents, who fought the widow's request, said there is little related case law.
"This is one of a handful and it is likely to have some effect in future cases," Eisen said.
Eisen added that the court dispute has been an emotional experience for Joseph Sr. and Patsy Kievernagel.
"The death of their son affected them a whole lot," said Eisen. "Then this came afterward and it was not pleasant for them."