Deceased man’s sperm can be used for posthumous reproduction, rules Delhi HC
In a landmark verdict, the Delhi High Court has ruled that a deceased man’s sperm can be used for posthumous reproduction, if his prior consent is there.
“In the opinion of this Court, under the prevailing Indian law, there is no prohibition against posthumous reproduction if the consent of the sperm owner or egg owner can be demonstrated,” Justice Pratibha M Singh said, directing Sir Ganga Ram Hospital, Delhi, to hand over the frozen semen sample of a 30-year-old unmarried man—who died of cancer in September 2020 – to his parents for posthumous reproduction to preserve their son’s legacy.
“Given the settled position, as per the medical records produced by the (Sir) Gangaram Hospital, the sperm constitutes property and the parents are the legal heirs of their deceased son. With no prohibition on posthumous reproduction, and consent having been given by the Petitioner’s son prior to his death, the court is of the opinion that this is a suitable case for the release of the sperm sample to the Petitioners,” she ordered on October 4.
“Respondent No. 3—Ganga Ram Hospital is accordingly directed to hand over the frozen Semen Sample …dated 27th June, 2020, stored in the IVF lab into the custody of the petitioners forthwith,” it said.
However, it clarified “that the said semen sample shall not be used for any commercial or monetary purpose.”
It sought to emphasise that with the expansion of modern science, which enables infertile couples to have children, even the hope of grandparents to continue the legacy of their young deceased son who had got his sperm sample preserved cannot be defeated. “In India, it is not unusual for grandparents to exclusively bring up children especially in the absence of the real parents due to separation, divorce or demise…Grand-parents are equally capable of bringing up their grand-children in a manner so as to integrate them into society,” it said.
The high court directed the Central Government Standing Counsel to communicate its order to the Secretary, Ministry of Health and Family Welfare for necessary action and to consider if any law, enactment, or guidelines were required to address issues related to posthumous reproduction or post-mortal reproduction.
“If the deceased had been married and had a spouse, the issues would not have been as complex. In the absence of a spouse, the question arises: is there any prohibition on posthumous reproduction under the existing law? The answer is clearly in the negative. In the absence of any such prohibition, this Court is unable to read a restriction where none exists,” Justice Singh said.
Under Section 24(f) of the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), posthumous collection of gametes (reproductive cells) can be done with prior consent of the commissioning couple, it noted.
Posthumous Reproduction refers to the process of conceiving a child using ART after the death of one or both biological parents. As already noted earlier, it involves techniques like Stimulated Ejaculation, Micro Epididymal Sperm Aspiration (‘MESA’), or Testicular Sperm Extraction (‘TSA’) from a deceased or brain-dead individual. Alternatively, preserved or frozen sperm or eggs collected before death can be used.
The Petitioners—grieving parents of the deceased—had approached the Delhi High Court seeking to continue his legacy by obtaining his preserved semen sample from Sir Ganga Ram Hospital for posthumous reproduction. Their son was diagnosed with cancer and he was to be administered chemotherapy. At that stage, doctors advised him for storage of his semen in order to deal with any infertility issues that might have occurred due to chemotherapy.
The deceased had then given consent for freezing of his semen sample, and his semen sample was accordingly preserved in IVF lab of Sir Ganga Ram Hospital on June 27, 2020. He died at the age of 30 on September 1, 2020.
The court noted that the petitioners’ son had clearly stated that he was willing for semen freezing for fertility preservation and it for the purpose of having progeny.
“Thus, the consent in this case for preservation of the semen is not just implied but in fact express. The deceased who was the owner of the sample was well aware that he was not married and he also did not have any partner. The son of the Petitioners intended for the semen sample to be used in order to bear a child…From the consent given for semen sample preservation the deceased son’s last wish can also be discerned. When he passed away, the parents being the heirs of the deceased, and semen samples being genetic material and constituting property, the parents are entitled for release of the same,” the HC said.
