Centre moves Delhi HC against order permitting posthumous reproduction

The Central government has moved the Delhi High Court challenging an order directing a private hospital to release frozen gametes of an unmarried deceased man to his parents.

A bench of Chief Justice D K Upadhyaya and Justice Tejas Karia issued notice to the parents on Centre’s appeal assailing the 2024 verdict of a single judge which held that there was no prohibition against posthumous reproduction if the consent of the sperm or egg owner could be demonstrated.

In its order passed on January 29, the bench listed the appeal for hearing on February 27.

During the hearing, the Centre’s counsel said the single judge’s decision was in the teeth of the existing law on assisted reproduction and surrogacy.

She said the law did not provide for grandparents to become the “intending” couple for the purpose of IVF and surrogacy, which was being permitted by the single judge.

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On the court’s query, the counsel also informed that the deceased’s frozen gamete were yet to be released to his parents in spite of the single judge’s direction and a consequent contempt plea by the parents was also pending in the high court.

The high court also asked the Centre to explain the delay of over a year in filing the appeal.

On October 4, 2024, the single judge directed Ganga Ram Hospital to release the frozen gametes of the deceased to his parents. The judge’s order came on a petition by the parents.

The court had asked the Union Ministry of Health and Family Welfare to consider whether any law, enactment, or guidelines were required to address issues related to posthumous reproduction or post-mortal reproduction.

Posthumous Reproduction (PR) refers to the process of conceiving a child using Assisted Reproductive Technology (ART) after the death of one or both biological parents.

The petitioners’ son, after being diagnosed with cancer, had frozen his semen sample in 2020 before the start of chemotherapy as the doctors had informed that the treatment of cancer may lead to infertility.

Therefore, he decided to preserve his sperm in an IVF lab of the hospital in June 2020.

The single judge, in its verdict, held that a sperm sample constituted a property or an estate and in the case of a deceased person, it is part of the individual’s biological material just like the human corpse or its organs.

Regarding the consent of the sperm owner in this case, the single judge had noted that the petitioners’ son, while giving consent for preservation of his semen sample, had clearly stated that he was willing for semen freezing for fertility preservation.

The proposed child may be born through an identified surrogate mother or by fertilisation of the sperm with a consenting woman who may be identified by the petitioners through IVF, the single judge ruled.

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