The Delhi High Court last week allowed a couple in their 60s to obtain a sperm sample from their deceased son, paving the way for posthumous reproduction.
The case
The parents of a 30-year-old man, who died of cancer in 2020, moved the Delhi High Court after the hospital, which had stored their son’s frozen sperm sample, refused to release it.
Sperm retention is common in cancer patients as cancer treatments such as radiation and chemotherapy can affect sperm count and quality. The hospital, when it refused to release the saved sperm to the parents, thought that there are no guidelines for the removal of gametes in the absence of a spouse. That way it was a situation that the sperm could not be removed without proper court orders.
This led the applicants to “want to continue the legacy of their deceased son” and raise their grandson, seeking the court’s intervention. They told the court that they, along with their daughters, “are prepared to take full responsibility for any child born using a frozen sperm sample”.
The law
The Assisted Reproductive Technology Act, 2021 deals with the regulation and supervision of all reproductive and artificial reproductive procedures. The Assisted Reproductive Technology Regulations, 2022 describe the process of “sperm retrieval after death”, but only account for cases where the deceased is married, and the person seeking retrieval is the surviving spouse.
The Ministry of Health and Family Welfare (MoHFW), in an affidavit filed before the Court in the case, argued that the law was not intended to apply to what the Court called “postmortem midwifery”. It said the Surrogacy Regulation Act only applies to intended couples or women with medical needs for adoption, and does not include grandparents as “intended grandparents”.
International practices
With limited Indian law on the matter, the complainants relied on legal developments from abroad. A few places around the world allow reproduction after death, but with express permission.
Uruguay allows posthumous reproduction with written consent, valid year-round. Belgium allows it after a waiting period of six months following the death, but the application must be made within two years.
The state of Victoria, Australia allows posthumous reproduction after written or verbal consent in the presence of two witnesses, and following the approval of a “patient review panel”. It also mandates parent counseling.
Canada and the UK both require written consent for posthumous reproduction. Israel, meanwhile, excludes parents, allowing only the deceased’s female partner to use a sperm sample, although this varies from case to case.
The Delhi HC decision refers to a case in Israel, where the parents of a 19-year-old soldier who was killed in action got legal permission to use their son’s sperm after his death. A daughter was born from the sperm of a dead son.
The decision
First, the Court agreed with the petitioners that the ART Act and its regulations could not apply to their case, as the law had not come into force at the time of their son’s death. This meant that there was no restriction on the release of a gamete from a person other than a spouse.
Second, the Court also accepted the petitioners’ contention that gamete or sperm samples can be considered “property” as they are part of the human organism. “human corpse or its parts”.
As to whether the parents of the deceased have the right to issue a sample, the Court relied on the Hindu Law of Succession, where the parents are considered the legal heirs of the deceased in the absence of a spouse or children.
“If the spouse is not present, the question arises: is there a ban on reproduction after death under the existing law?” The answer is quite the opposite. If there is no such prohibition, this Court cannot read the prohibition in its absence,” said the Court.
Antecedents and concerns
The Court’s decision sets an example that a claim can be made by a member of the Court, other than a spouse, to obtain frozen eggs, sperm of a deceased person.
However, the HC decision also warns that such a transfer of property “cannot be automatic” given that “informed consent and the future welfare of the child in cases of posthumous reproduction or posthumous reproduction” must be kept in mind. “Each case needs to be judged on its own merits, apart from the common law,” the Court said.
This is important as posthumous reproduction raises several ethical questions that the law must consider, from taking the consent of the deceased, to whether the child born will grow up without a single genetic parent.
Even if not presented in this case, such a claim presents a complex of issues involving family structure. Although the posthumous grandfather seems to challenge the notions of conventional family structure, the desire can often stem from patriarchal values that represent a preference for patrilineal descent.