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Synopsis

On Friday, Justice Pratibha M Singh of the Delhi High Court held that “there is no prohibition against posthumous reproduction if the consent of the sperm owner or egg owner can be demonstrated”. The court made such observations in a petition filed by Gurvinder Singh and Harbir Kaur, seeking the release of their deceased son’s frozen semen sample, which were stored in the fertility lab of Sir Ganga Ram Hospital. 

As their son was diagnosed with a form of cancer. The doctors advised him to preserve his semen due to potential infertility caused by the treatment. However, their son passed away on 1st September 2020 at the age of 30. Following his death, the parents requested the hospital to release the frozen semen sample on 21st December 2020, as they intended to carry on his legacy. However, the hospital refused to release the sample without a court order.

The Union of India, through Standing Counsel Kirtiman Singh, objected to releasing the deceased's semen sample to the parents, citing provisions of the ART Act, 2021. The government's counsel argued that even if the sample were released, it would not be useful due to age restrictions under the Act, which permits ART services for women aged 21-50 and men aged 21-55. Since the deceased's mother was beyond this age limit, the use of the semen sample would be legally barred. Additionally, the Surrogacy (Regulation) Act, 2021 also restricts eligibility based on age, preventing her from bearing a child.

The parents, through Senior Advocate Suruchi Aggarwal, argued that the ART Act did not apply since the semen sample had been preserved before the Act came into force. They contended that there were no legal restrictions on releasing the semen sample to someone other than a spouse. Thus, they believed there were possibilities for using the sample to have a grandchild despite the existing laws.

The following issues arose for consideration:
“(i) Whether the ART Act and the Surrogacy Act are applicable to the facts of the present case?
(ii) Whether semen is to be treated as property of the deceased? 
(iii) Whether the Petitioners are entitled to release of the said semen sample, which is preserved in the Hospital? 
(iv) Whether there are any ethical or other legal considerations that need to be looked into while considering the relief sought in the W.P.(C) 15159/2021 Page 52 of 84 present petition?”

The court examined whether a semen sample could be classified as property. To address this, it analyzed the nature of reproductive material by referencing other jurisdictions, such as Canada, where legislation defined sperm, ovum, or other human cells as “human reproductive material”.  

In determining whether a semen sample qualifies as property, the court applied three tests: whether it could be possessed, used, and disposed of. The court found that semen, capable of being preserved and used for procreation, met these criteria. Various technological advancements further supported its recognition as property. The semen sample was deemed part of an individual's estate, similar to other biological materials. The court concluded that a semen sample, like an ovum, constituted property.

The court noted that the primary issue in this case was whether the parents, as heirs, were entitled to the release of the semen sample of their deceased son, and whether the sample constituted property. The court noted that, under the Hindu Succession Act, 1956, the parents were Class-1 legal heirs, satisfying both conditions. Consequently, the parents were entitled to the release of the semen sample.

However, the court also considered whether the release should be conditional. The parents intended to use the semen sample for posthumous reproduction to continue their son's legacy, raising questions about its legality. Posthumous reproduction involves conceiving a child using assisted reproductive technology (ART) after a parent’s death, and various methods, such as sperm extraction or the use of preserved gametes, could be employed.

The court acknowledged the lack of international consensus on posthumous reproduction, with some countries prohibiting it, while others regulate it strictly. In this case, as the deceased had no spouse, the situation became more complex. The court emphasized that the key consideration should be whether there was express or implied consent from the deceased regarding the use of his genetic material for posthumous reproduction. Additionally, the court identified potential concerns, such as the psychological effects on the child, the motivations of the parents, and broader societal implications like the commercialization of human reproductive material.

The court stressed the importance of informed consent and the welfare of the future child. It held that, while the semen sample could be classified as property and there were no explicit prohibitions on its release, each case required careful consideration. Therefore, the court exercised caution and noted that no general rule should apply automatically to such cases.

The court emphasized that the legal issue of posthumous reproduction (PR) or post-mortal sperm retrieval (PMSR) was complex, with variations in regulation across jurisdictions. Culturally, in India, it was not uncommon for grandparents to raise children in cases where parents were absent due to separation, divorce, or death. Courts have sometimes awarded custody of children to grandparents in custody disputes.

The court noted that posthumous reproduction is not prohibited under Indian law if consent is clear, and the semen, being genetic material, is considered the deceased's property. The court held that the petitioners, as legal heirs, were entitled to the release of the semen sample and directed the hospital to hand it over. The court emphasized that the semen sample must not be used for commercial purposes and urged the Ministry of Health to consider whether specific laws or guidelines are needed to address posthumous reproduction.

Case Title: Gurvinder Singh v Government Of NCT (2024:DHC:7662)