New Delhi: The question of posthumous reproduction, or using a dead person’s sperm for reproduction after death, is once again in focus before the Indian courts following a recent Kerala High Court order that allowed a woman to preserve her husband’s semen.
The 9 March order has reignited the debate on posthumous reproduction and accompanying issues, such as consent, legality, constitutionality, and its impact on other laws like the Indian Hindu Succession Act.
Although this is not the first time posthumous reproduction has been allowed by a court, the Kerala HC has gone a step further. It did away with the consent of the donor, a requirement under Section 21 of the Assisted Reproductive Technology (Regulation) Act, 2021.
In October 2024, the Delhi High Court had first paved the way for cryopreservation of a dead person’s frozen sperm by allowing the man’s elderly parents to get its custody. The HC had ruled a sperm was akin to property that can be inherited.
Legal experts lauded the Kerala HC order as “progressive” and “deeply humane”, but added a word of caution. The interim order, lawyers feel, could introduce new problems for women, who could face pressure from their in-laws to pursue similar reproduction for continuing the family bloodline.
Case before the Kerala HC
In an attempt to provide respite to the wife of a brain-dead man, the Kerala High Court allowed her to preserve her husband’s semen for having his children.
Underlining the husband’s “critical” condition, a bench of Justice M. B. Snehalatha, in an interim order, noted that since the man was on a ventilator there was no possibility of obtaining a written informed consent from him.
“If the matter is delayed any further, irreparable hardship may be caused in view of his health,” the court noted while pointing out that although Section 22 of the Assisted Reproductive Technology Act requires the written consent of all parties for cryopreservation procedures, the husband in this case was not in the state to provide it.
Granting temporary relief to the Kerala-based woman, whose husband suffered from extensive cerebral venous thrombosis–a condition which is not only rare but also life-threatening, the court directed the Kozhikode hospital to allow the extraction and cryopreservation of the husband’s sperm.
“It is also made clear that, other than the extraction and preservation of the gametes, no further procedure under the Assisted Reproductive Technology (Regulation) Act shall be carried out without the permission of this Court,” the court said. The matter will be taken up again on 7 April.
As per the 2021 Act, cryopreservation means freezing and storing of gametes (sperms), zygotes, embryos, ovarian and testicular tissues. It allows couples to preserve their respective gametes for future conception.
However, the two cases in hand—from the Delhi and Kerala HC—take the issue forward as they revolve around posthumous reproduction on which the ART Act is silent. The current legal framework does not explicitly allow or forbid posthumous reproduction, with cases such as the one before Delhi and Kerala prompting judicial intervention on the issue.
Speaking to ThePrint, advocate Mohini Priya, who specialises in surrogacy laws lauded the Kerala HC order and termed it a “deeply humane and progressive step” which recognises that the law cannot remain rigid in the face of complex, real-life situations.
“While consent is undeniably a foundational principle under the ART framework, the judgment rightly acknowledges the idea of constructive impossibility, which refers to situations where it’s practically impossible to obtain consent,” Priya said.
“In such cases, a strict insistence on consent risks defeating reproductive rights altogether. This judgment is significant as it shifts the focus towards women’s reproductive autonomy, and gives due primacy to her rights and her lifelong stake in the decision,” she said.
Speaking to ThePrint, Dr Mayuri Gupta, Senior Resident Fellow, Charkha (Vidhi Centre for Legal Policy), said, ”The Kerala High Court’s interim order raises concerns about bodily autonomy. Extracting reproductive cells, except with express consent, risks undermining a person’s agency over their body.”
Underlining how the recognition of living wills by the Supreme Court affirms that such autonomy must be respected even in incapacity, Gupta said, “This case highlights the urgent need for a clear law on posthumous reproduction as well as on extraction of reproductive cells of a person who cannot consent.”
The Delhi High Court ruling
On 4 October 2024, the Delhi High Court had allowed an elderly couple to take the frozen sperm of their dead son, who passed away due to Non-Hodgkin’s lymphoma, a form of cancer, so that they could continue his legacy.
“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,” the court ruled in its 84-page order.
In February this year, the Centre challenged the said Delhi High Court ruling before a two-judge bench, saying that there were certain legal questions which would come into play if the ruling was allowed to remain unchallenged.
In its plea, which came before the bench of Chief Justice D. K. Upadhyay and Tejas Karia, the government had argued that allowing posthumous reproduction to continue one’s family lineage raised serious legal and ethical concerns. One of the problems preempted by the Centre was that the ART Act, 2021 is only for intending couples, or women, and does not envisage grandparents.
Underlining issues of consent and personal autonomy at play in the current case, the Centre had also said that allowing posthumous reproduction would create uncertainty when it comes to succession rights.
Pointing to the absence of any established legal precedents on the subject of posthumous reproduction, Justice Pratibha Singh in the 4 October ruling had relied on cases from the UK, Australia and the United States to fill the gap in laws on posthumous reproduction. In doing so, the court noted that there was no explicit bar or prohibition if “the consent of the sperm owner or egg owner can be demonstrated”.
The HC had also emphasised that caution must be exercised in such cases, and merely because the semen sample constitutes property and there is no prohibition against its release, the same cannot be automatic.
Supreme Court lawyer Ameyavikrama Thanvi suggested caution while venturing into the ambit of posthumous reproduction, saying it can create legal issues when it comes to the application of inheritance laws.
Highlighting that in the Kerala HC case it was the wife who approached the court, Thanvi added that given the social circumstances in India, it cannot be ruled out that in some cases, a woman may be pressured to approach the court by her in-laws who want an heir.
“Courts would do well to restrain themselves in permitting such cryopreservation of gametes where one party is not in a position to give express consent,” she said.
Global laws the court drew upon
In the absence of explicit provisions on posthumous reproduction, the Delhi HC had drawn upon references from Australian Human Tissue Act to consider semen as a body part and the property of the deceased person, which was then open to the laws of inheritance. At the same time, the court noted that there was no international consensus on the issue.
Flagging the discrepancies between different laws on the subject, the court said that while some jurisdictions like Germany, Switzerland, and France prohibit the same, others like Russia and Canada have strict regulations governing the same.
(Edited by Viny Mishra)