The Central Government has approached the Delhi High Court to challenge a 2024 ruling that directed a private hospital to release the frozen gametes of an unmarried deceased man to his parents for posthumous reproduction.
A Division Bench comprising Chief Justice D.K. Upadhyaya and Justice Tejas Karia issued notice to the deceased man’s parents and scheduled the matter for further hearing on February 27.
During the hearing, the Centre’s counsel argued that the single judge’s decision was contrary to existing laws on assisted reproductive technology (ART) and surrogacy. She submitted that there is no legal provision under current laws allowing grandparents to be treated as the “intending couple” for the purposes of in vitro fertilisation (IVF) or surrogacy.
The counsel also informed the Bench that the deceased man’s frozen sperm had not yet been released to his parents despite the earlier court order. A contempt petition filed by the parents regarding this non-compliance is also pending before the High Court.
The Bench questioned the Centre about the delay of more than a year in filing the appeal and asked for a justification.
The single judge’s order, dated October 4, 2024, had directed Sir Ganga Ram Hospital to release the frozen semen of the deceased to his parents. The deceased man, who was diagnosed with cancer in 2020, had opted to preserve his sperm sample before beginning chemotherapy, due to concerns about infertility.
The man had stored his gametes in the hospital’s IVF lab in June 2020. After his death, his parents approached the court seeking custody of the frozen sperm.
In the impugned ruling, the single judge held that there was no statutory prohibition on posthumous reproduction where the consent of the gamete owner could be established. The court observed that the semen sample constituted “property” or “estate” and could be treated akin to other biological material such as organs of a deceased body.
The court further found that the consent form signed by the deceased during semen preservation indicated his willingness for the sample to be used for fertility purposes. It ruled that the proposed reproduction could be carried out via an identified surrogate or with a consenting woman through IVF, as determined by the parents.
The single judge had also urged the Union Ministry of Health and Family Welfare to examine whether there was a need for legislation or guidelines to address posthumous reproduction.
Posthumous reproduction—where a child is conceived using gametes from a deceased individual—is a legally and ethically sensitive domain in India. The Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021, set out strict norms regarding consent and the definition of intending couples. However, these statutes are silent on scenarios involving gametes of deceased individuals and their use by surviving family members.
The outcome of the Centre’s appeal may have far-reaching implications for reproductive rights, consent, and the legal status of posthumous children in India.
