Delhi High Court: In a petition filed under Article 226 of the Constitution by parents (petitioners) who wished to continue the legacy of their deceased son by seeking release of his frozen semen sample stored in the fertility lab of Sir Ganga Ram Hospital (‘Hospital’) (respondent 3), a Single Judge Bench of Pratibha M. Singh, J. opined that the hope of the parents to continue the legacy of their young deceased son who specifically got his semen sample preserved, could not be defeated and directed the Hospital to hand over the semen sample to the petitioners. The Court also directed the Ministry of Health and Family Welfare (‘MoHFW’) to consider whether any law or guideline was required to address issues related to Posthumous Reproduction (‘PR’) and Postmortem Sperm Retrieval (‘PMSR’).
Background
The petitioners’ son was diagnosed with cancer and was admitted in the Hospital where he was to be administered chemotherapy. At that stage, he was advised to store his semen to deal with any infertility issues that may occur due to the treatment. The deceased gave his consent, and his semen sample was preserved in the IVF lab on 27-06-2020.
Unfortunately, he passed away on 01-09-2020. The petitioners approached the Hospital on 21-12-2020 for the release of the frozen sperm sample but were informed that the same could not be released without appropriate orders from the Court.
On 13-05-2022, the Hospital said that one of the reasons why the semen sample of the deceased was not being released was because there was no codified policy that had been formulated by the Hospital to deal with the present situation. The affidavit which was submitted to the Court by the Hospital on 30-05-2022 mentioned that as per the Assisted Reproductive Technology (Regulation) Act, 2021 (‘ART Act’), no statutory guidelines were placed in respect of disposal/utilization of semen samples of unmarried persons.
On 03-02-2022, the Hospital filed its counter-affidavit wherein the maintainability of the present petition was challenged on the ground that the Hospital was not ‘State’ as per Article 12 of the Constitution. Further, it was contended that there were no laws, including the ART Act which governed the release of a frozen semen sample of an unmarried deceased male to his parents or legal heirs.
On 03-02-2023, MoHFW filed an affidavit wherein it said that the Surrogacy (Regulation) Act, 2021 (‘SRA’) applies only to intending couples or women with medical needs for surrogacy and does not cover grandparents as ‘intending grandparents’ and that the ART Act was to assist infertile couples or women. It further mentioned that the petitioners lacked the necessary documentation as per the ART Rules, 2022 which made their request impermissible.
Analysis and Decision
The Court considered the position of the petitioners and said that they could not be left without a remedy in this unique situation and could also not be relegated to a civil court. It was opined that the questions related to the frozen semen samples and their release to the legal heirs constituted a public function and thus, the Hospital’s actions or inactions were within the scope of Article 12 of the Constitution.
The Court stated that control over human reproductive material and use of human reproductive material constitutes an important public function. It was said that handling, preservation, and potential release of human reproductive material involves significant ethical, social, and legal considerations that extend beyond the realm of private contractual relationships. Thus, the Court opined that the present writ was maintainable.
The Court noted that the present petition raised several important issues, including legal and ethical issues relating to giving birth to progeny. It was noted that the primary legal heirs of the deceased were his parents.
Further, the Court stated that the legal regime which was prevalent only in the form of two enactments namely the ART Act and the SRA do not even contemplate the scenario that had arisen in the present case and thus, said that there is clearly a legal vacuum.
The Court noted that the Union of India objected to the release of the semen sample on the ground that even if the sample was released, it could not be put to any productive use due to the age limits fixed for a commissioning couple to avail ART services under the ART Act.
The Court perused the provisions of the ART Act and said that there could be myriad possibilities of the petitioners begetting a grandchild using their son’s semen sample. It was also mentioned that the Transfer of Property Act, 1882 (‘TPA’) recognizes transfers made to unborn persons subject to certain conditions.
The Court noted that Section 42(2)(r) of the ART Act mandates that the Central Government may make rules to regulate the manner of collection of gametes posthumously under Section 24(f) of the ART Act. Further, it was said that the ART Rules do not specifically outline the procedure for obtaining consent from individuals who wish to opt for the posthumous collection of gametes.
The Court referred to Form 10 titled ‘Consent for freezing of Gametes/Sperms/Oocytes’ under the ART Rules and said that there was no prohibition on release of the gamete to a person other than the spouse.
Further, the Court stated that since all the events in the facts of the present matter had occurred before the enactment of the ART Act, the said Act would not be applicable to the facts of the present case. It was also said that even if the provisions are considered for the principles that are recognized therein, there was no prohibition in release of the sample to a person who was not a spouse.
While considering whether semen sample constitutes property, the Court said that ‘property’ under Indian law includes both tangible and intangible property and that the estate of a deceased would also be included in the term ‘property’.
The Court said that for deciding as to what is ‘property’, it must be determined whether the property is capable of possession, whether it is capable of being used and enjoyed, and whether it is capable of being disposed of. Applying these three tests to a semen sample, the Court said that semen could be owned and possessed within the body and outside of it as well.
Thus, the Court said that a sperm sample constitutes a ‘property’ or an ‘estate’ of an individual, as it can be used for the purposes of procreation, for providing fertility to an infertile person, and it can also be donated for enabling a woman to conceive. It was also mentioned that in case of a deceased person, a sperm sample is part of the individual’s biological material just like the human corpse or its organs.
While deciding whether the petitioners were entitled to release of the semen sample on ground that they were the heirs to the decease, the Court said that there could be no doubt that any biological material belonging to a deceased who had passed away intestate would belong to his heirs. Also, it was said that under the Hindu Succession Act, 1956, in the absence of any spouse or children, the parents are Class-I heirs of the deceased. Thus, the Court held that the parents were entitled for the release of the semen sample.
The Court stated that the present petition was an instance of PR, not PMSR and opined that the question that ought to be considered was whether there was consent either express or implied for the use of the genetic material by the owner of the sperm for postmortal reproduction.
The Court said that the informed consent and welfare of the future child in cases of posthumous reproduction or post-mortal reproduction should also be borne in mind, which is why, before directing release of gametes especially in case of a deceased individual without a spouse, the Court exercises parens patriae jurisdiction over the unknown and unborn.
The Court said that the purpose of the decision taken by the deceased was for fertility preservation, which clearly meant that it was done for having progeny or for procreation. Thus, the Court stated that the consent for preservation of semen, in this case, was not just implied but in fact express.
Further, the Court opined that, under the prevailing Indian law, there was no prohibition against posthumous reproduction if the consent of the sperm owner or egg owner could be demonstrated.
Lastly, the Court directed the Hospital to hand over the frozen semen sample and made it clear that the said sample should not be used for any commercial or monetary purpose. The Court also directed for the present decision to be communicated to the MoHFW to consider whether any law, enactment, or guidelines are required to address issues related to PR and PMSR.
[Gurvinder Singh v. Govt. of NCT of Delhi, 2024 SCC OnLine Del 6902, Decided on 04-10-2024]
Advocates who appeared in this case:
For Petitioners — Sr. Advocate Suruchi Aggarwal, Advocate Gurmeet Singh
For Respondents — CGSC Kirtiman Singh, Advocate Vidhi Jain, Advocate Taha Yasin, Advocate Subhash Kumar, Advocate Anurag Bindal
Buy Constitution of India HERE
