Can use deceased’s sperm for reproduction: Delhi High Court

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 forthwith 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.

However, it clarified that the said semen sample shall not be used for any commercial or monetary purpose.

“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 yesterday.

The court 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…grandparents are equally capable of bringing up their grandchildren 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.

Under Section 24(f) of the Assisted Reproductive Technology (Regulation) Act, 2021, 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 the ART after the death of one or both biological parents.

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.

‘Not for commercial use’

The Delhi High Court, however, clarified that the semen sample mustn’t be used for any commercial purpose.