There Is No Prohibition Against Posthumous Reproduction If Consent Of Sperm Owner Or Egg Owner Is Demonstrated: Delhi HC
The Delhi High Court observed that there is no prohibition against posthumous reproduction if the consent of the sperm owner or egg owner can be demonstrated.
The Court observed thus in a writ petition preferred by the parents, seeking release of their deceased son’s frozen semen sample stored in the fertility lab of the Hospital.
A Single Bench of Justice Prathiba M. Singh held, “… 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. 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.”
The Bench said that in India, it is not unusual for grand-parents to exclusively bring up children especially in the absence of the real parents due to separation, divorce, or demise.
Senior Advocate Suruchi Aggarwal appeared on behalf of the petitioners while CGSC Kirtiman Singh appeared on behalf of the respondents.
In this case, the petitioners (parents), grieving the untimely demise of their son, sought to continue his legacy by obtaining his preserved semen sample from the respondent Hospital. Their son was diagnosed with Non-Hodgkin’s Lymphoma in June 2020 which is a form of cancer and was admitted in the respondent hospital. He was to be administered chemotherapy and at that stage, he was advised for storage of his semen in order to deal with any infertility issues that may occur due to chemotherapy. The deceased had then given consent for freezing of his semen sample, and his semen sample was preserved in IVF lab of the respondent hospital. Unfortunately, he passed away at the age of 30 years in September 2020. As per the petitioners, the advice of doctors was that chemotherapy could result in infertility, which led to this step being taken by the deceased son.
The frozen semen sample was preserved at the hospital and hence, the petitioners approached the hospital in December 2020 for release of the frozen sperm. However, the hospital took the position that the same could not be released without appropriate orders from the Court. The petitioners stated that they were regularly paying for the preservation of their deceased son’s semen sample, however, after the payment period expired, the hospital refused to accept further payments. They feared that the hospital may stop preserving the frozen semen due to non-payment. As per them, they along with their daughters, were prepared to take full responsibility for any child born via surrogacy using the frozen semen sample. Hence, they approached the High Court.
The High Court in view of the facts and circumstances of the case, noted, “A perusal of the above legal position as also the decisions which have been discussed above would show that the issue of PR or PMSR is a complex issue and there is no uniformity in the manner in which the same has been dealt with or regulated upon in different jurisdictions.”
The Court added that the cultural and societal ethos do not shun grand-parents from being given custody of children as well.
“Coming to the facts of the case under consideration, the Petitioners’ son had, while giving consent for preservation of his semen sample, clearly stated that he was willing for semen freezing for fertility preservation. The purpose was for `fertility preservation’ which clearly means for the purposes of having progeny or for procreation. Thus, the consent in this case for preservation of the semen is not just implied but in fact express”, it said.
The Court further took note of the fact that 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. He may have hoped to live after chemotherapy but nature willed otherwise. 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”, it observed.
The Court held that, with the expansion of modern science enabling infertile couples to have children, the hope of grand-parents to continue the legacy of their young deceased son who specifically got his semen sample preserved, cannot be defeated.
“Grand-parents are equally capable of bringing up their grand-children in a manner so as to integrate them into society. In the present case, the proposed child may be born through an identified surrogate mother or by fertilization of the sperm with a consenting lady who may be identified by the Petitioners through IVF. If the parents choose to use surrogacy, it is seen that the Surrogate Act does not deal with such a situation. If the parents opt for ART services, the ART Act, 2021 also does not deal with this situation. Hence the parents have knocked the doors of this Court for exercising of extraordinary writ jurisdiction under Article 226 of the Constitution of India”, it added.
The Court said that, with no prohibition on posthumous reproduction, and consent having been given by the petitioners’ son prior to his death, this is a suitable case for the release of the sperm sample to the petitioners.
“Respondent No. 3—Ganga Ram Hospital is accordingly directed to hand over the frozen Semen Sample bearing Reg no. 2726372 dated 27th June, 2020, stored in the IVF lab into the custody of the Petitioners forthwith. It is made clear however that the said semen sample shall not be used for any commercial or monetary purpose”, it directed.
Accordingly, the High Court allowed the petition and permitted the release of the frozen semen sample.
Cause Title- ABC v. Government of NCT of Delhi and Ors. (Neutral Citation: 2024:DHC:7662)
Appearance:
Petitioners: Senior Advocate Suruchi Aggarwal and Advocate Gurmeet Singh.
Respondents: CGSC Kirtiman Singh, Advocates Vidhi Jain, Taha Yasin, Subhash Kumar, and Anurag Bindal.
