By Sanjay Raman Sinha
In a major order, the Delhi High Court allowed the parents of a deceased cancer patient to use his cryopreserved sperm for surrogacy. The Court ruled that there is no forbiddance under the existing Indian law against posthumous reproduction. In the absence of the spouse, posthumous reproduction is permitted if it is confirmed that the consent of the egg or sperm owner has been taken.
Posthumous reproduction uses a deceased person’s sperm to produce a child. The procedure is not regulated by Assisted Reproductive Technology (Regulation) Act (ART Act) .
Preet Inder Singh, a 30-year-old man, was diagnosed with Non-Hodgkin’s lymphoma (a form of cancer). Anticipating that the treatment could impact his fertility, he had then given consent for freezing of his semen sample, and his semen sample was preserved in IVF lab. Thereafter, he underwent chemotherapy. After his demise, the parents sought to retrieve his frozen sperm from the hospital for posthumous reproduction. The Gangaram Hospital, Delhi, however, maintained that the frozen sperm could not be released without court order.
The battle went to the court. The parents filed a petition and prayed for the release of their son’s semen. They stated that they have been regularly paying for the preservation of their deceased son’s semen sample. However, after the payment period expired on June 27, 2020, the hospital refused to accept further payments. The petitioners feared that the hospital may stop preserving the frozen semen due to non-payment. The parents asserted that they along with their daughters, are prepared to take full responsibility for any child born through surrogacy using the frozen semen sample. The hospital on their part filed a counter-affidavit, challenging the maintainability of the petition. The hospital held that there were no laws, including the ART Act, that governs the release of a frozen semen sample of an unmarried deceased male to his parents or legal heirs. Without any guidelines or regulations, the hospital was unable to release the semen sample despite it being cryopreserved since June, 2020.
Justice Prathiba Singh ruled in favour of the parents. The order stated that there is no legal ban against posthumous reproduction in the absence of a spouse, provided the donor’s consent is established.
The verdict is seen as a significant step in moulding the legal architecture on posthumous reproduction in India. It also raises important legal, ethical, and social concerns related to reproductive rights, inheritance and consent. It must be noted that on the issue of posthumous reproduction, there is no international consensus, and in India too it is a grey area.
If we look at international precedent then in a case related to posthumous reproduction, the Supreme Court of British Columbia had come to the conclusion that the deceased person’s reproductive material has to be construed as property. In the case of KLW vs Genesis Fertility Centre, three issues arose. The first was whether semen constitutes property, The second issue was whether property passes intestate to the parents. The third issue concerned whether semen should be released and whether written consent was required The Court declared the reproductive material to be the sole property of the petitioner, to be released for the purpose of creating embryos for her reproductive use, while prohibiting any commercial use. The Supreme Court of British Columbia also held that the wife was the sole beneficiary of the deceased’s intestate estate.
In the present case, the Delhi High Court delved into the legal concept of property and concluded that: “under Indian law, ‘property’ includes both tangible and intangible property. The estate of a deceased would also be included in the term ‘property’. Thus, sperm sample constitutes as ‘property’ or an ‘estate’ of an individual, as it can be used for the purposes of procreation, leading to the birth of a child. It can also be used for the purposes of providing fertility to infertile person.
It can also be donated for the purposes of enabling a woman to conceive. Thus, sperm sample constitutes property or an estate. In the case of a person who is deceased, it is part of the individual’s biological material just like the human corpse or its organs.” However, merely because the semen sample constitutes “property” and there is no prohibition against such release, the rights can’t be automatic and universal. Each case needs to be adjudged on its own facts, without a general rule, the High Court held.
Technology enables the use of semen samples for the purposes of giving birth to progeny. However, what is to be borne in mind is also the informed consent and the welfare of the future child in cases of posthumous reproduction or post-mortal reproduction. In this particular case, the parents of the person undertook the responsibility of taking care of the child born from the frozen sperm. Parents’ rights in posthumous reproduction is yet another dimension demanding clarity. In this particular case, Justice Singh referred to the Hindu Succession Act and ruled that the parents were Class-1 legal heirs under the said Act which entitles them to take possession of their son’s sperm. This ruling is important as it underscores the rights of parents in the absence of a surviving spouse, thus paving the way for other similar claims in the future.
Existence of a married spouse lessens the complexity of the case. In this particular scenario, there was no spouse and the Court found no legal provision prohibiting posthumous reproduction, hence as per the medical records produced by the Gangaram Hospital, the sperm constitutes property and the parents are the legal heirs of their deceased son, the court concluded.
Consent of the deceased is an essential component in the issue of posthumous use of frozen sperm. The prime question being whether the deceased had given his consent to the use of his/her sperm or eggs after death. In many countries, a written consent from the deceased for posthumous reproduction is required. In Preet Inder Singh’s case, he had cryopreserved his sperm before undergoing chemotherapy, this indirectly underscored his intent to safeguard his reproductive material. However, he did not specifically address its posthumous use.
The Delhi High Court hence relied on this intent. This coupled with parents’ legal status as Class-1 heirs under the Hindu Succession Act, made them eligible to access to the sperm.
By entitling the parents to take possession of their son’s sperm, the Court recognized the rights of parents in the absence of a surviving spouse; creating a legal precedent for other similar claims in the future. The new reproductive technology is fraught with psychological and social challenges. This not only includes questions about inheritance and identity, but also that of commercialization of reproductive material and the use of such technologies for financial gain. The child may also face identity and upbringing issues. These needs to be addressed as well.
No doubt the High Court’s verdict is a welcome step towards legal recognition of posthumous reproduction in India. Yet at the same time, the underlying complexities demands the need for a comprehensive legal framework to address outstanding issues. Issues like consent, inheritance, and parental rights need to be put in a proper legal framework. Also, the rights of the child born from such arrangement needs to be legally safeguarded.
OTHER CASES
1. Parsi Couple case (Bombay High Court, 2020)
A Mumbai-based Parsi women sought her deceased husband’s frozen sperm for surrogacy. The Bombay High Court ruled in her favour and granted her rights to the sperm for assisted reproduction. The Court ruled that the deceased had given consent for assisted reproduction and hence the wife can avail the sperm as the surviving spouse.
2. Israel’s landmark case on Posthumous Reproduction (2011)
In Israel, the parents of an Israeli soldier who died in combat made a plea to retrieve and use their son’s sperm for surrogacy. The court ruled in favour of the parents, allowing them access to the frozen sperm and proceed with the surrogacy. This case set an international precedent wherein further to the consent of the deceased son/daughter, the sperm can be used by spouse/parents for surrogacy procedure.
3. United States court verdict on posthumous reproduction
In the United States, Hecht vs Superior Court of Los Angeles (1993), William Kane had preserved his sperm before committing suicide. His girlfriend demanded Kane’s sperm for reproduction, but Kane’s children from a previous marriage objected. The California Court of Appeal ruled in favour of the girlfriend. The Court recognized Kane’s intent to allow the use of his sperm after his death. The case underlined the significance of deceased’s consent and intention in posthumous reproduction cases.