Why did the Delhi High Court give parents access to their dead son’s sperm? Will this set a precedent?

In a landmark judgment, the Delhi High Court has allowed 60-year-old parents to use his deceased son’s sperm sample for posthumous assisted reproduction. The verdict came after four years of legal battle.

The court has allowed the plea of ​​the parents of a 30-year-old deceased man, who was diagnosed with non-Hodgkin’s lymphoma, a form of cancer, to continue his legacy.

What should you know about the case?

The parents of 30-year-old man Preet Inder Singh, who died of cancer in 2020, approached the Delhi High Court after Sir Ganga Ram Hospital refused to release their son’s sperm, which was stored in their fertility lab.

The father, Gurvinder Singh, said the hospital had advised them to store his son’s sperm as the treatment could adversely affect the quality of his sperm. Cancer patients undergoing treatment often store their sperm because radiation and chemotherapy can affect the number and quality.

Preet Inder, who was unmarried, agreed and his sample was frozen on June 27, 2020. He died in early September. When the grief-stricken parents tried to access their son’s frozen sperm after a few months, the hospital denied the request, reasoning that there are no guidelines to allow the release of gametes if there is no is a husband. The hospital authorities said they could not allow this without a court order.

Preet Inder’s mother Harbir Kaur thanked the court for the “last grim hope”. Her lawyer Suruchii Aggarwal gave an example of a 48-year-old woman in Pune who had twins through surrogacy using the sperm of her 27-year-old son who had died of brain cancer in Germany, according to a report by BBC.

What is the law in India?

The Assisted Reproductive Technology (RT) Act, 2021 prescribes the procedure for “posthumous sperm retrieval” but only in cases where the deceased is married and the person retrieving the stored sperm is the surviving spouse.

The Ministry of Health and Family Welfare (MoHFW), in an affidavit filed before the Court in this case, argued that the legislation was not intended to be applied in cases referred to by the Court as “post-mortem grandparenting”. It said the Surrogacy Regulation Act only applies to expectant couples or women with medical surrogacy needs, and not to grandparents as “expectant grandparents”.

What did the Court say?

The court noted that the parents intended to use the sperm sample to continue his son’s inheritance, but he died without making a will. Because he was unmarried at the time of his death, his parents were the main legal heirs.

It was also said that since there was a “legal vacuum” on the question of law arising in the case, both the ART Act and the Surrogacy Act, 2021 did not take into account the scenario in the case.

“The powers of courts even to impose the death penalty or to end life, for example in cases of euthanasia, etc., have been pronounced in the past on the basis of criminal case law or under Article 21 of the Constitution of India. However, so far in India, the court has not come across a case where its order could actually lead to the birth of a life or a child. It is this scenario that the court finds difficult to deal with in the present case,” the court noted in its order.

The court stated that posthumous reproduction generally becomes “more complex” in the context of the death of a parent when only one parent, i.e. the unmarried father, froze his sperm and did not have any partner, the court said. The print.

The court equated the semen sample and genetic material of the deceased with ‘property’ and said: ‘When he died, where the parents are the heirs of the deceased, and semen samples are genetic material and constitute property, the parents are entitled to release of the deceased. the same.”

The court also cited social considerations in a country like India, where it is not uncommon for grandparents to raise children exclusively, especially if the parents are absent due to separation or divorce.

Referring to a 2018 Supreme Court judgment in the case of Nil Ratan Kundu versus Abhijit Kundu, in which it awarded custody of the respondent’s minor son to his grandparents, the court said that the “well-established principle of law that the welfare of the child is the must be the paramount consideration in custody cases.”

After analyzing the decisions of courts in various places, such as the Court of Appeals, California (USA), the Supreme Court of the State of New York, and the Supreme Court(s) of British Columbia, the Australian Capital Territory and New York, South -Wales, the court said there is “no international consensus” on the issue of posthumous reproduction.

What did the hospital notice?

The counsel for Sir Ganga Ram Hospital noted in 2022 that there were no codified guidelines by the hospital to release the semen sample. It also highlighted that although the deceased man’s request for sperm cryopreservation was made before the chemotherapy sessions, there were no legal guidelines on the disposal or use of semen samples from unmarried persons.

The hospital sued the Ministry of Health and Family Welfare in November 2022, making it a party to the present case.

What are the international practices in this area?

Uruguay allows posthumous reproduction with written permission, which is valid for one year. Belgium allows this after a waiting period of six months after death, but the application must also be made within two years.

In Australia, posthumous reproduction is permitted after written or oral consent in the presence of two witnesses, and after approval by a “patient review panel”. It also requires parental guidance.

Canada and Great Britain both require written permission for posthumous reproduction. Israel excludes parents and allows only the female partner of the deceased to use the sperm sample, although exceptions have been made on this point.

The practice is banned in a number of countries, such as Italy, Sweden, Switzerland, France, Malaysia, Pakistan, Hungary and Slovenia, while Sri Lanka, Nepal, Bhutan and Bangladesh have no guidelines.