New Delhi: By holding a deceased man’s frozen semen sample as equivalent to property, which can then be inherited by his family members, the Delhi High Court earlier this month paved the way for posthumous reproduction in the country. In doing so, a bench of Justice Prathiba M. Singh allowed a plea by the parents of a 30-year-old deceased man, who was diagnosed with Non-Hodgkin’s lymphoma, a form of cancer, to continue his legacy.
The court also directed Sir Ganga Ram Hospital to hand over the deceased’s frozen semen sample to his parents while clarifying that it cannot be used for “any commercial or monetary purpose”.
“Given the settled position, as per the medical records produced by Ganga Ram 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,” the court ruled in its 84-page order given on 4 October.
Saying that both conditions were satisfied in this case, where the first was the semen sample being deemed equivalent to property, and the second being that the petitioner-parents were the deceased’s heirs, the court allowed the deceased’s sperm to be released.
Observing that the existing Assisted Reproductive Technology (ART) (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021, were inadequate to deal with the scenario in the present case, the court referred to Australian statutes like the Human Tissue Act, 1982, and Assisted Reproductive Treatment Act, 2008, along with cases from courts in the UK, US, among others.
Speaking to the Print, senior advocate Suruchii Aggarwal said, “Each case is different from the other. However, there is no reported judgement in India for posthumous reproduction, where the court has directed the release of a semen sample. This decision has also paved the way for something like this to be done in India, and for the legal system to support such activities.”
In the present matter, cases from different jurisdictions around the world were relied upon to consider semen as a body part and the property of the deceased person, which was then open to the laws of inheritance, she said.
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What reactions did the ruling garner
Advocate-on-record Ameyavikrama Thanvi, while speaking to ThePrint, said, “This is a humanitarian judgement that hasn’t fully considered the codified law but at the same time, it has also highlighted the glaring shortcomings in the legislation.”
Adding a note of caution, Thanvi said that setting a precedent that allows a deceased son’s parents to father his progeny could run the risk of exposing voiceless widows to potential abuse of an otherwise well-meaning ruling.
“The judgement fails to consider that parents—even if the heirs of their son’s gametes—are not legally fit to use them,” she said, adding that while the ruling is the potential first step in a law that needs further consideration, regulations are still needed to determine how gametes will be preserved, by whom, for how long and who may use them.
What was the case
Grieving the untimely demise of their son due to cancer, the petitioner-parents in the present case wanted to continue his legacy and approached the court to obtain his preserved semen sample from Sir Ganga Ram Hospital.
In June 2020, when 30-year-old Inder Singh was diagnosed with cancer, he was admitted to the hospital where he was to be administered chemotherapy, and was advised to store his semen to deal with any infertility issues that may occur due to the treatment.
Subsequently, he gave his consent for freezing the semen sample, and the same was preserved in the hospital’s IVF lab.
Months later, in September of that year, Singh passed away. Following this, his parents approached the hospital in December 2020 for release of the frozen sperm, but the hospital refused, saying it couldn’t release it without appropriate court orders.
Claiming they had been regularly paying for preservation of the semen sample, the parents contended that the hospital refused to accept further payments after a period of time.
Fearing that the hospital may stop preserving the frozen sample altogether, the parents approached the court, stating that they were prepared to take full responsibility of the child which could be born via surrogacy, through the frozen sample.
What was the hospital’s stand
In May 2022, the hospital’s counsel said in court that one of the reasons the semen sample of the deceased was not released was that no codified policy had been formulated by the hospital to deal with the present situation.
It also said that while the deceased’s request for semen cryopreservation was made before the chemotherapy sessions began, there existed no statutory guidelines on the disposal or utilisation of semen samples of unmarried persons.
Considering the important questions raised about the interpretation of the ART (Regulation) Act, 2021, the court impleaded the Ministry of Health and Family Welfare in November 2022, making it a party to the present case.
Without any guidelines or regulations, the hospital was unable to release the semen sample despite it being cryopreserved since June 2020, the court observed in its ruling.
What points did the court consider
In her judgement, Justice Prathiba Singh said that the present plea raised several important issues, ethical, moral and legal.
The court noted that the parents admittedly intended to use the semen sample to continue their son’s legacy, however, he died intestate or without making a will. He was also unmarried at the time of his death, without a partner or spouse, making his parents his primary legal heirs.
Saying that it was faced with a “diabolical situation” where its order could permit the deceased’s parents to cause the birth of their grandchild in their son’s absence, the court said “the issues raised ought to be merely decided on the basis of the existing legal and statutory framework and not on the basis of any other extrinsic material”.
Pointing out that the prevalent legal regime itself is only governed by two enactments, the ART Act, 2021, and the Surrogacy Act, 2021, the court said that there was “clearly a legal vacuum” on the question of law that had arisen in this case, as both statutes did not contemplate the scenario in the present case.
“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,” the bench remarked in its order.
The court also acknowledged the efforts of the lawyers in this case, like senior advocate Aggarwal and advocate Subhash Kumar, for the volume of legal precedents and material they had placed before the court from different jurisdictions.
Upon analysing the decisions of courts in various places, such as the Court of Appeals, California (US), the Supreme Court of the state of New York, and the Supreme Court(s) of British Columbia, the Australian Capital Territory, and New South Wales, the court said that “there is no international consensus” on the issue of posthumous reproduction.
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.
Posthumous reproduction/postmortal reproduction is usually in the context of the death of one of the parents, the court stated, while adding that it becomes “more complex” in cases where only one parent, that is, the unmarried father, froze his sperm and did not have any partner.
The court 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.
“Each case needs to be adjudged on its own facts, without a general rule,” it said, adding that several factors had to be borne in mind, like the family circumstances and well-being of the unborn child.
What was the court’s verdict
Saying that certain cultural and societal considerations deserved mentioning, the court said that in India, it is not unusual for grandparents to exclusively bring up children, especially in the absence of 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,” the court added.
Referring to the 2008 ruling of the top court in Nil Ratan Kundu vs Abhijit Kundu, where it granted custody of the respondent’s minor son to his grandparents, the court underlined the “well-settled legal principle that the welfare of the child should be the paramount consideration in custody cases”.
Coming to the case at hand, Gurvinder Singh vs Government of NCT Delhi, the court said that Inder Singh, the late son of the petitioners, had given his consent for preserving his semen sample.
“The purpose was for ‘fertility preservation’ which clearly means for the purposes of having progeny or for procreation,” the court pointed out. It added that the consent was “not just implied” but in fact “express”.
Saying that Inder Singh may have hoped to live after chemotherapy but nature willed otherwise, the court said that from the consent given for sample preservation, the deceased’s last wish could also be discerned.
Equating the deceased’s semen sample and genetic material with “property”, the court said, “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 to release of the same.”
With the expansion of modern science enabling infertile couples to have children, the hope of grandparents continuing the legacy of their young deceased son, cannot be defeated, the court observed.
Noting that the deceased’s parents had to knock on the doors of the court since their situation was not covered by either the Surrogacy Act or the ART Act, the court said that grandparents are “equally capable” of bringing up their grandchildren in a way where they are integrated into society.
Envisaging the possible scenarios that could follow the court’s decision, such as identifying a surrogate mother or by fertilisation of the sperm with a consenting lady through IVF (in-vitro fertilisation), the court said, “If the parents choose to use surrogacy, it is seen that the Surrogacy Act does not deal with such a situation. If the parents opt for ART, the ART Act, 2021, also does not deal with this situation. Hence the parents have knocked on the doors of this court.”
Finally, the court said that under the prevailing Indian law, there was “no prohibition” on posthumous reproduction “if the consent of the sperm owner or egg owner can be demonstrated”. It pointed out that had the deceased been married or had a spouse, the issue wouldn’t have been as complex.
(Edited by Nida Fatima Siddiqui)
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