No prohibition under Indian law on posthumous reproduction, says Delhi HC

Delhi High Court allows parents access to deceased son's frozen sperm for posthumous reproduction, citing no legal prohibition.

The Delhi High Court on Friday ordered a city-based hospital to release the frozen sperm of an unmarried deceased man to his parents, to enable him father a child posthumously. The HC said that there is no prohibition under the Indian law on posthumous reproduction, if the consent of a sperm or egg owner is proven.

Justice Prathiba M. Singh noted that the petitioners’ son, who died of cancer, while giving consent for preservation of his semen sample, had clearly stated that he was doing it to preserve fertility. She added that the parents being the heirs of the deceased, and semen samples being genetic material and constituting property, the parents are entitled to have access to the sample.

The court also noted that with the expansion of modern science enabling infertile couples to have children, the hope of parents to continue the legacy of their young deceased son, who specifically got his semen sample preserved, cannot be defeated.

The court also noted that the grandparents are equally capable of bringing up their grandchildren in a manner so as to integrate them into society. “Is there any prohibition on posthumous reproduction under the existing law? The answer is clearly in the negative,” the court noted.

It further added that in the absence of any such prohibition, this court is unable to read a restriction where none exists.

The high court stressed that since it is to decide in respect of access to the sperm sample of a deceased person, enormous caution needs to be exercised. It also relied upon similar situations in other countries, including the case of a 19-year-old soldier from Israel who was killed in 2002 in Gaza, in which his parents received legal permission to access their son’s sperm sample posthumously. The mother of the deceased soldier also got permission to choose the future single mother and a daughter was born. The court also noted a case from Germany that “adopts a rather conservative approach”, where the case of the “Erlanger baby” was hotly debated after a brain-dead pregnant mother was kept alive in an attempt to save her pregnancy.

The Court was dealing with a petition filed by the parents of the 30-year-old man who had passed away in 2020. He had frozen his sperms at Ganga Ram hospital after the doctors advised that he may face fertility issues during chemotherapy.