No ban on posthumous reproduction if consent is proven: HC

There is no prohibition on posthumous reproduction if the consent of a sperm or egg owner can be demonstrated, the Delhi high court held on Friday and directed a private hospital to release frozen gametes of a deceased man to his parents.

Posthumous reproduction refers to the process of conceiving a child using assisted reproductive technology after the death of one or both biological parents.

"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," Justice Prathiba M Singh said in a first-of-its-kind judgment.

The court said the decision shall be communicated by the Union ministry of health and family welfare for considering whether any law, enactment, or guidelines are required to address issues related to posthumous reproduction or post-mortal reproduction.

The court passed the verdict while directing Ganga Ram Hospital to forthwith release to a couple the frozen sperm of their deceased unmarried son for surrogacy to continue his legacy.

The petitioners' son, after being diagnosed with cancer, had frozen his semen sample in 2020 before the start of chemotherapy as the doctors had informed that the treatment of cancer may lead to infertility.

Therefore, the son had decided to preserve his sperm in an IVF lab of the hospital in June 2020.

When the deceased's parents approached the hospital to release the semen sample, the institution took the position that it could not be released without appropriate orders from the court.

The court, in its 84-page verdict, said the petition raised several important issues, including legal and ethical issues relating to giving birth to progeny.

"The court is faced with a diabolical situation in which its order could have the impact of permitting the parents of the deceased to in effect give birth to a grand-child in the absence of their son. Apart from the legal issues, there are moral, ethical and spiritual issues that confront the court in such a situation," it said.

The judge said the legal regime which is prevalent is only in the form of two enactments -- ART (assisted reproductive technology) Act, and the Surrogacy Act and both these statutes do not deal with the situation which the court is currently confronted with and there is clearly a legal vacuum.

"The powers of courts to hand even a death sentence or bring an end to life for example in cases of euthanasia, etc. have been pronounced upon in the past either under criminal jurisprudence or under Article 21 of the Constitution of India. However, hitherto, the court has not come across a case in India where its order could in fact lead to the birth of a life or a child. It is this scenario that the court struggles to deal with in the present case," it said.

The court also held that a sperm sample constitutes a property or an estate and in the case of a deceased person, it is part of the individual's biological material just like the human corpse or its organs.

It also said that 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 grandparents from being given custody of children as well, it said.

Regarding the consent of a sperm owner in this case, the court noted that the petitioners' son, while giving consent for preservation of his semen sample, had 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 and the consent in this case for preservation of the semen is not just implied but in fact express," the court said.

It added that 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.

With no prohibition on posthumous reproduction, and consent having been given by the petitioners' 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 them, it said.

The court made it clear that the semen sample shall not be used for any commercial or monetary purpose.

"With the expansion of modern science enabling infertile couples to have children, the hope of grandparents to continue the legacy of their young deceased son who specifically got his semen sample preserved, in the opinion of this court cannot be defeated.

"Grandparents are equally capable of bringing up their grandchildren in a manner so as to integrate them into society," it said.

The court said in this case, the proposed child may be born through an identified surrogate mother or by fertilisation of the sperm with a consenting woman who may be identified by the petitioners through IVF.