No Prohibition On 'Posthumous Reproduction' In Absence Of A Spouse, Consent Of Egg Or Sperm Owner Should Be Demonstrated: Delhi High Court

The Delhi High Court on Friday ruled that there is no prohibition under the prevalent Indian law against posthumous reproduction, in absence of the spouse, if the consent of the egg or sperm owner is demonstrated.

Posthumous reproduction is the process of using a deceased person's gametes to create a child. The procedure is not regulated by Assisted Reproductive Technology (Regulation) Act, 2021 or the Surrogacy (Regulation) Act, 2021 or any guidelines or rules.

“In the opinion of this Court, under the prevalent Indian law, there is no prohibition against posthumous reproduction if the consent of the egg owner or sperm owner can be demonstrated,” Justice Prathiba M Singh ruled.

While allowing a plea moved by an elderly couple for release of frozen semen sample of their deceased unmarried son who died due to cancer in September 2020, Justice Singh while pronouncing the verdict said:

“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 against posthumous reproduction? The answer is clearly negative.”

Senior Advocate Suruchi Aggarwal appeared for the petitioners.

It was the case of the parents that following the demise of their son, they were the "sole claimants" over his remaining "bodily assets", and action of Ganga Ram hospital in denying them access to the semen sample was violative of their rights.

When the deceased son was undergoing treatment in Ganga Ram Hospital, the doctors had informed the parents that the treatment of cancer may lead to infertility. Therefore, the deceased had decided to preserve his sperm in an IVF lab of the hospital in June 2020.

After his death, his parents approached the Hospital for of release his sperm so that they can "carry on their son's legacy" but the hospital refused, stating that there was no clear direction from the State in this regard.

In her verdict, Justice Singh observed that the petition raised several important issues, including legal and ethical issues relating to giving birth through progeny.

The court said that the parents intended to use the semen sample of their deceased son for continuing his legacy as he was unmarried at the time of his death and did not have any partner or spouse.

Observing that the primary legal heirs of the deceased were his parents, the court observed:

“This Court is placed 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 grandchild 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. However, 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 intrinsic material.”

It added: “The powers of Court to hand even a death sentence or bring an end to a life, for example, in cases of euthanasia etc have been pronounced upon in the past, either in the 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 for a child. It is this scenario that the Court struggles to be in the present case.”

Justice Singh ruled that neither the ART Act nor the Surrogacy Act were applicable in the case as the situation before the Court is not covered in either of the statutes.

“Whether semen is to be treated as property of the deceased? Yes, there is a legal analysis on that,” the court said while pronouncing the judgment.

The Court said that what ought to be considered in the case was whether there was consent, either express or implied, of the deceased for the purpose of using the semen sample for post mortal reproduction.

“There are various debates that arise in this context. First, the intention of the petitioners who would become grandparent to the proposed child, whether their motivation is to feel a sense of continuation of their deceased son's existence or potentially to seek financial benefits, the psychological effects on a child born through posthumous reproduction, the broader societal implications of posthumous reproduction,” the court said.

It added that the technology enables use of semen samples for giving birth to progeny, but what is to be borne in mind is the informed consent and the welfare of the future child in cases of posthumous reproduction or post mortal reproduction.

“Several factors would be required to be born in mind, including the family circumstances, well being of the unborn etc. Since the court is to decide in respect of release of a sample of a deceased person, enormous caution needs to be exercised. Merely because the semen sample constitutes property, there is no prohibition against such release. The same cannot be automatic. Each case needs to be judged on its own facts without a general rule,” the court held.

It further said that the issue of post mortal reproduction 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.

“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 culture and society ethos does not shun grandparents from being given custody of children as well. For example, in custody battles in order to ensure well being of children, courts have handed over children to be brought up by grandparents with visitation rights to both parents,” the court said.

Justice Singh noted that in the present case, the deceased given his consent for preservation of his semen sample, clearly stating that he was for fertility preservation.

“The purpose was for fertility preservation, which clearly means for the purpose of having progeny. Thus, the consent in this case for preservation is not just implied, but in fact, expressed. The deceased, who was the owner of the sample, was well aware that he was not married. He also did not have any partner. The son of the petitioners intended for the semen samples to be used in order to bear a child. He may have hoped to live after chemotherapy, but nature willed otherwise,” the court said.

It further ruled: “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, the semen samples being genetic material, they are entitled for release of the same. With the expansion of modern science enabling infertile couples to bear children, the hope of grandparents to continue the legacy of their young deceased son, who specifically got a semen sample preserved, in the opinion of this court cannot be ignored.”

Disposing of the matter, Justice Singh directed Ganga Ram hospital to hand over the frozen semen sample into the custody of the petitioner parents forthwith. However, the court clarified that the semen sample shall not be used for any commercial or monetary purpose.

“The proposed child may be born through an identified surrogate mother, or by fertilization of the sperm with the consenting lady who may be identified by the petitioners through IVF,” the court said.

It added: “The present decision shall be communicated by the learned CGSC to the Ministry of Health and Family Welfare for considering whether any law, enactment or guidelines are required to address issues relating to the case.”

Case Title: Gurvinder Singh & Anr. v. GNCTD & Ors.

Click here to read order