Cited Article

The Widow and the Sperm: The Law of Post-Mortem Insemination

Case Citation

Estate of Kievernagel, 166 Cal. App. 4th 1024, 83 Cal.Rptr.3d 311 (2008)

Background

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 gametic 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. In this judgment roll appeal, the widow cannot challenge the probate court's finding that the decedent's intent was to have his frozen sperm discarded upon his death. Accordingly, we affirm the decision denying distribution of the frozen sperm to the widow.

Citing Quote

In discussing the public policy concerns of postmortem artificial insemination, the Hecht court discussed a French case, Parpalaix v. CECOS, as described in Shapiro & Sonnenblick, The Widow and the Sperm: The Law of Post–Mortem Insemination (1986) 1 J. Law & Health 229 (Shapiro & Sonnenblick). Alain Parpalaix, a 24–year–old suffering from testicular cancer, made a deposit of sperm at CECOS, with no instructions for its future use. At the time, Alain was living with his girlfriend; he married her two days before his death. She then requested the sperm deposit. When CECOS denied the request, the widow, joined by her in-laws, went to court. (Shapiro & Sonnenblick, supra, 1 J. Law & Health at pp. 229–230.) Their complaint sounded in contract; they claimed they were owners of the sperm as Alain's natural heirs and CECOS had broken the contract of bailment by refusing the return the sperm. (Id. at p. 230.) The widow's attorney also argued she had a moral right to the sperm. (Id. at p. 231.) The French court noted the difficulties under French law governing inheritance rights and illegitimacy posed by children born post-mortem, but offered no solutions. (Id. at pp. 231–232.) The French court refused to apply contract principles to the case. It also refused to consider the sperm as an indivisible body part; “it described sperm as ‘the seed of life ... tied to the fundamental liberty of a human being to conceive or not to conceive.’ ” (Shapiro & Sonnenblick, supra, 1 J. Law & Health at p. 232, fn. omitted.) The fate of the sperm was to be decided by the person from whom it was drawn; the sole issue was that of intent. (Ibid.) “The court had to decide not only whether Alain Parpalaix had intended his widow to be artificially inseminated with his sperm, but also whether that intent was ‘unequivocable.’ ” (Ibid., fn. omitted.) From the testimony of Alain's wife and parents, the French court found Alain intended to make his wife the mother of his child. (Ibid.) Relying on this description of the French case, the Hecht court appears to have accepted the rule that the sperm donor's intent controls in disposition of his frozen sperm after his death. (Hecht, supra, 16 Cal.App.4th at p. 857, 20 Cal.Rptr.2d 275.)

Article Publication Date

1986

Volume

1

Issue

2