The Indian government is challenging a Delhi High Court order that allowed parents to access their deceased son's frozen semen for posthumous reproduction. The case highlights the complex legal and ethical questions surrounding posthumous reproduction in India, particularly when the deceased is unmarried.
In October 2024, the Delhi High Court ruled that the parents of a young cancer patient could access his frozen semen, which he had preserved before undergoing chemotherapy. The court clarified that there was no legal obstacle to using the sperm for reproduction after death, provided the donor's consent was confirmed and there was no spouse involved. Justice Prathiba Singh, referencing the Hindu Succession Act, stated that parents are entitled to their deceased son's sperm as they are "Class-1 legal heirs". The court also concluded that reproductive material, such as a semen sample, constitutes "property" or an "estate".
The case involved Preet Inder Singh, who was diagnosed with Non-Hodgkin's lymphoma in June 2020 and preserved his semen before undergoing chemotherapy, which could affect his fertility. He passed away on September 1, 2020, and his parents, Gurvinder Singh and Harbir Kaur, requested the hospital to release the preserved sample in December 2020. When the hospital refused, citing the absence of statutory guidelines for the disposal or use of semen samples from an unmarried individual under the Assisted Reproductive Technology (Regulation) Act 2021, the parents moved the Delhi High Court in 2021.
The High Court referenced the Hindu Succession Act in its decision, stating that parents have the right to access their deceased son's sperm, considering it as biological material belonging to him. The court noted that in the absence of a spouse or children, parents are classified as Class-1 legal heirs. The court directed Sir Ganga Ram Hospital to release Preet Inder Singh's frozen sperm sample to his parents. The court also stated that the semen sample should not be used for any commercial or monetary purpose.
The Ministry of Health and Family Welfare (MoHFW) argued that the Assisted Reproductive Technology Act, 2021, was not intended to address scenarios where the deceased is unmarried. The Act and its accompanying rules prescribe the procedure for "posthumous retrieval of sperm" but only account for scenarios where the deceased is married, and the person seeking retrieval is the surviving partner.
The Delhi High Court has also sought the Central government's response to a Public Interest Litigation (PIL) challenging the ban on adopting frozen embryos. The PIL, filed by IVF specialist Dr. Aniruddha Narayan Malpani, argues that the ban violates a couple's rights under Article 14 and 21 of the Constitution of India. The PIL challenges Sections 25(2), 27(5), 28(2) and 29 of the Assisted Reproductive Technology (Regulation) Act, 2021, and Rule 13(1)(a) of the Assisted Reproductive Technology (Regulation) Rules. Malpani argues that these provisions ban even altruistic, voluntary, consent-based donation of pre-existing frozen embryos of a commission couple for adoption by another infertile couple, where both partners suffer from infertility.
These cases raise important questions about reproductive rights, inheritance, and the legal status of reproductive material in India. The government's challenge to the Delhi High Court order indicates a need for clearer legal guidelines and regulations regarding posthumous reproduction and the use of frozen gametes. The courts are now grappling with these complex issues, balancing individual rights with societal norms and ethical considerations.
