What happens to frozen sperm after the donor’s death?

Joseph and Iris Kievernagel were married for ten years and then decided to have a child using in vitro fertilization (“IVF”). After the fertility center inseminated Iris with Joseph’s sperm, it also froze a sample of his sperm as in case there was a need for it in the future. Joseph signed an agreement indicating his choice to have the frozen sperm discarded upon his death instead of authorizing its release to Iris. After Joseph was killed in a tragic helicopter accident, Iris petitioned the probate court for an order to require the fertitlity clinic to hand over Joseph’s sperm.

This issue was formerly confined to Europe, but it has arisen in American courts with more frequency as the IVF procedure becomes more widespread. Some states govern the situation by statute: See, e.g., ALA. CODE § 26-17-21(a) (2008) (repealed effective Jan. 1, 2009); ALASKA STAT. § 25.20.045 (2008) (“A child, born to a married woman by means of artificial insemination performed by a licensed physician and consented to in writing by both spouses, is considered for all purposes the natural and legitimate child of both spouses.”); ARK. CODE ANN. § 9-10-201(a) (2008) (“Any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing to the artificial insemination.”); GA. CODE ANN. § 53-2-5 (2008) (“An individual conceived by artificial insemination . . . shall be considered a child of the parents and entitled to inherit under the laws of intestacy from the parents and from relatives of the parents, and the parents and relatives of the parents shall likewise be entitled to inherit as heirs from and through such individual.”); CONN. GEN. STAT. § 45a-777(a) (2008) (“A child born as a result of A.I.D. may inherit the estate of his mother and her consenting spouse or their relatives as though he were the natural child of the mother and consenting spouse and he shall not inherit the estate from his natural father or his relatives.”).

In the Estate of Kieversnagel, Iris petitioned the probate court for a preliminary distribution of an “asset of no financial value” but “of immense sentimental value to the widow.” Joseph’s parents objected to the preliminary distribution. They contended it was contrary to Joseph’s express wishes, as set forth in the Agreement, that upon his death, his sperm sample was to be discarded.

In discussing the public policy concerns of postmortem artificial insemination, the California court discussed a famous French case, Parpalaix v. CECOS. 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. 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. The widow’s attorney also argued she had a moral right to the sperm. The French court noted the difficulties under French law governing inheritance rights and illegitimacy posed by children born post-mortem, but offered no solutions.

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.'” The fate of the sperm was to be decided by the person from whom it was drawn; the sole issue was that of intent. “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.'”

Relying on this description of the French case, the California appellate court in In re Estate of Kievernagel, 83 Cal.Rptr.3d 311 (Ct.App. 2008) held that the intent of the donor controls the disposition of frozen gametes after the donor’s death:

“We agree….that gametic material, with its potential to produce life, is a unique type of property and thus not governed by the general laws relating to gifts or personal property or transfer of personal property upon death… We also agree that Joseph, as the person who provided the gametic material, had at his death an interest, in the nature of ownership, to the extent he had decisionmaking authority as to the use of the gametic material for reproduction.”

The comment to Article 7, Section 703 of the Uniform Parentage Act (“UPA”) asserts that “[g]iven the dramatic increase in the use of [artificial insemination] in the United States during the past decade, it is crucial to clarify the parentage of all of the children born as a result of modern science.” As this recent California case exposed, there appears to be a need for the legislatures of every state to explore and examine having a comprehensive statute that balances the interests of the decedent and the state while advancing the best interest of posthumously conceived children.

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