Not unlawful to use deceased man's sperm for posthumous reproduction on his consent: Delhi High Court

The Delhi High Court on Friday ordered the handover of a deceased man's frozen sperm sample to his parents, after finding that the man had given his consent before his death for the possible use of his preserved sperm for reproduction.

Notably, Justice Prathiba M Singh found that there is no prohibition on such posthumous reproduction (use of sperm or ovum of a person after their death for conceiving a child) if the person whose sample is being used has given consent.

"Is there any prohibition on posthumous reproduction under the existing law? The answer is clearly in the negative ... 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," the Court's October 4 ruling said.

The Court was dealing with a petition filed by the parents of a man who had passed away at the age of 30 years in 2020 due to cancer.

During his treatment, the man had allowed the storage of a frozen sample of his sperm, after doctors advised that he may face fertility issues during chemotherapy.

After the man's death, his parents wished to use the sperm to continue his legacy but was forced to approach the High Court for access to the frozen sperm sample as the hospital declined to release the same without a court order.

The parents submitted that they are Class I legal heirs of the deceased, and there was no legal embargo on claiming the genetic material of their deceased son.

They told the Court that they would take full responsibility of the child born through surrogacy or any other method using their deceased son’s sperm. In support of their case, the counsel for the parents cited several foreign case laws that permitted Postmortem Sperm Retrieval (PMSR) and Posthumous Reproduction (PR).

The Court observed that the deceased son had given clear consent for the preservation of his sperm, which constitutes his property. After his death, his parents being the heirs of the deceased, were entitled to the release of the same, it held.

“Given the settled position, as per the medical records produced by the 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,” the Court held.

The Court also held that the writ petition filed by the parents against the hospital, in this case, was maintainable as the matter involved the hospital's discharge of public functions.

“Such control over human reproductive material, given its important implications on family lineage, reproductive rights, and potential future generations, constitutes an important public function ... Thus, in the opinion of this Court, the present writ is maintainable.”

The Court said that there is no law prohibiting the parents’ petition.

Further, under Section 24(f) of the Assistive Reproductive Technology (Regulation) Act, 2021 (ART Act), posthumous collection of gametes (reproductive cells) can be done with prior consent of the commissioning couple.

With regard to the social acceptability of this order, the Court observed, 

“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. The cultural and societal ethos does not shun grand-parents from being given custody of children as well.”

The Court further noted 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.

"Grand-parents are equally capable of bringing up their grand-children in a manner so as to integrate them into society," the Court said.

The Court proceeded to direct the hospital to release the stored sperm sample of the deceased man to his parents.

"It is made clear however that the said semen sample shall not be used for any commercial or monetary purpose," the Court added.

Senior Advocate Suruchii Agarwal along with Advocates Kuldeep Singh and Dhruv Srivastava appeared for the petitioners.

Central Government Standing Counsel Kirtiman Singh with Advocates Vidhi Jain and Taha Yasin represented the State.

Advocates Subhash Kumar and Anurag Bindal appeared for the Sir Ganga Ram Hospital.

[Read Judgment]