.
New Delhi: The Union health ministry has challenged in Delhi high court its ruling asking Sir Gangaram Hospital to release the frozen semen of an unmarried dead man to his parents.The ministry’s appeal asked two main questions: Can judges create new heirs, other than a spouse, for children conceived after death, and can gametes/sperm be treated like inheritable property that can be passed on to legal heirs, other than a spouse, without a written consent. In Oct 2024, a single judge held that there is no prohibition on posthumous reproduction if the consent of a sperm or egg owner can be demonstrated and directed the hospital to release frozen gametes of a deceased man to his parents.The hospital did not yet release the preserved semen to the parents, whose son, aware of his terminal condition, left his semen in a cryopreserved state.Posthumous reproduction refers to the process of conceiving a child using assisted reproductive technology after the death of 1 or both biological parents.”Under the prevailing Indian law, there is no prohibition against posthumous reproduction if the consent of the sperm owner or egg owner can be demonstrated. If the deceased was married and had a spouse, the issues would not have been as complex,” the judge noted. Contesting the ruling, the Ministry of Health and Family Welfare’s Department of Health Research last week argued that the verdict “rewrites statutory definitions to judicially create a new beneficiary class (“intending grandparents”) and treats cryopreserved semen as inheritable property devolving to legal heirs.”A bench of Chief Justice DK Upadhyaya and Justice Tejas Karia told the Centre’s standing counsel, Radhika Bishwajit Dubey that the govt will first have to explain the long delay in filing the appeal before deciding if it should be heard.The ministry contended that the single judge relied on foreign jurisprudence where explicit written consent was present, “an element entirely absent in the present case”, and underlined that the dead man was unmarried and “left no written informed consent for utilisation of his preserved semen sample.””A child conceived through posthumous reproduction at the instance of grandparents would have no legally recognised parentage under the Acts, which contradicts the foundational legislative objective of protecting child welfare and ensuring certainty of parentage prior to conception,” the ministry submitted in the appeal, arraying, apart from the parents of the dead man, the private hospital and Delhi govt as parties in the matter.”The ART (Assisted Reproductive Technology) Act and the SRA (Surrogacy Regulation Act), constitute a complete code and limit eligibility strictly to commissioning couples/woman and intending couples/intending woman respectively, and within prescribed age limits. Parents do not fall within the statutory definition,” the plea insisted, urging the HC to set aside the 2024 verdict, adding that the judge “improperly elevated emotional considerations and subjective capability into enforceable legal rights.”The 2024 order said that, in the absence of a spouse, there is no prohibition on posthumous reproduction, and directed the hospital to release to the parents the frozen sperm of their deceased unmarried son for surrogacy to continue his legacy.
