## Facts

- Joseph M. Kievernagel and his wife, Iris Kievernagel, pursued in vitro fertilization treatment requiring Joseph to provide a cryopreserved “backup” sperm sample.
- The fertility clinic required an “IVF backup sperm storage and consent agreement,” which Iris completed and Joseph signed.
- The agreement stated the sperm was Joseph’s “sole and separate property” and that Joseph retained full authority over its disposition.
- The agreement gave Joseph options for disposition upon death or incapacity, including donation to Iris or destruction.
- Joseph selected and initialed the option directing that the sperm be discarded upon his death; the agreement also provided for discarding upon divorce.
- Joseph died in a helicopter crash, after which Iris sought release of the frozen sperm to attempt posthumous conception.
- The clinic refused to release the sperm without a court order due to the written directive and conflicting claims.

## Issues

1. Whether a surviving spouse may obtain and use a decedent’s cryopreserved sperm for posthumous conception when the decedent signed a storage agreement directing the sperm be discarded upon death.
2. Whether, in disputes over gametic material contributed by only one genetic donor, the donor’s intent is legally controlling.

## Decision

- The California Court of Appeal affirmed the probate court’s order denying Iris’s petition for distribution of the sperm.
- The court held that when only one person has contributed the genetic material and no other genetic contributor’s procreational autonomy is implicated, the donor’s intent controls disposition.
- Because the probate court found Joseph intended destruction upon death, and that finding was supported by the signed agreement, Iris was not entitled to obtain the sperm for posthumous conception.
- The court noted the appeal was limited to the face of the record, preventing Iris from challenging the sufficiency of evidence supporting the probate court’s factual finding of intent.

## Legal Principles

- Gametic material is treated as a special category of property-like interest warranting heightened respect due to its reproductive potential; disposition turns primarily on the donor’s intent.
- Where the stored gametic material derives from a single genetic donor, courts enforce the donor’s documented instructions, and a surviving spouse’s desire to procreate does not override a clear directive to avoid posthumous reproduction.
- A signed fertility clinic consent/storage agreement may constitute dispositive evidence of the donor’s intent regarding post-death disposition.
- On a record-limited appeal, appellate review accepts the trial court’s express factual findings of intent when supported by the documents in the record and focuses on legal error rather than reweighing evidence.

## Conclusion

The court enforced the decedent’s written instruction that his cryopreserved sperm be discarded upon his death, holding that in the absence of another genetic contributor’s competing procreative interests, the donor’s intent governs disposition and bars posthumous use contrary to that intent.


In re Estate of Kievernagel, 166 Cal. App. 4th 1024 (Ct. App. 2008)