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Law School Case Brief

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


In a judgment roll appeal every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it. The sufficiency of the evidence to support the findings is not open to review. 


Joseph and Iris Kievernagel were married for 10 years prior to Joseph's death. They contracted with the Northern California Fertility Medical Center, Inc., to perform in vitro fertilization (IVF) to allow Iris to conceive. As part of the sperm cryopreservation storage program, the Center required an IVF backup sperm storage and consent agreement (Agreement). Iris completed the Agreement and Joseph signed it. The Agreement provided that the sperm sample was Joseph's sole and separate property and he retained all authority to control its disposition. The Agreement provided for two options for the disposition of the sperm sample upon death or incapacitation: donate the sperm to his wife or discard the sperm sample. The box indicating the sperm sample was to be discarded was checked, and Joseph initialed it. Iris signed, acknowledging the sperm sample was Joseph's sole and separate property. Joseph died in a helicopter crash in July 2005. Iris was appointed administrator of Joseph's estate. She petitioned under Probate Code section 11623 for a preliminary distribution of an “asset of no financial value” but “of immense sentimental value to the widow.” The item she sought was a vial of Joseph's frozen sperm. The Center would not release it without a court order. Joseph's parents objected to the preliminary distribution contending that it was contrary to Joseph's express wishes that upon his death, his sperm sample was to be discarded. The probate court denied distribution of frozen sperm to Iris, relying on the intent of the husband and by evidence that the husband was opposed to having children but agreed to fertility procedures due to his wife's strong desire for children. Iris appealed.


Did the probate court err in denying the release of Joseph's sperm to his widow?




The court affirmed the decision denying distribution of the frozen sperm to the widow. The court held that the probate court properly determined that the disposition of the frozen sperm was governed by the intent of the husband. In determining the disposition of gamete material, to which no other party had contributed and thus, as to which another party's right to procreational autonomy was not implicated, the intent of the donor controlled. The disposition of the frozen sperm did not implicate the widow's right to procreative autonomy. Therefore, the probate court properly declined to employ a balancing test.

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