Delhi HC: Give dead man’s frozen sperms to his parents for surrogacy

Thirty-year-old Preet Inder Singh was diagnosed with Non-Hodgkin’s lymphoma connected June 22, 2020. Five days later, earlier starting chemotherapy, helium had fixed his semen illustration for cryopreservation — doctors had said chemotherapy whitethorn impact his fertility.

Concluding that the reproductive worldly specified arsenic semen illustration oregon an ovum constitutes “property” oregon “an estate”, the High Court directed Sir Ganga Ram Hospital to merchandise the frozen sperm illustration to Singh’s parents.

Singh died connected September 1, 2020. On December 21 that year, his parents, Gurvinder Singh and Harbir Kaur, requested the infirmary for merchandise of the preserved sperm sample.

When they failed to get the sample, the parents moved the Delhi High Court successful 2021. Represented by Senior Advocate Suruchii Aggarwal and Advocate Gurmeet Singh, the parents said they, on with their 2 daughters, are prepared to instrumentality afloat work for immoderate kid calved via surrogacy utilizing the frozen semen sample.

The hospital, connected the different hand, submitted earlier the High Court — it was represented by Advocate Anurag Bindal — that “in presumption of the Assisted Reproductive Technology (Regulation) Act 2021, nary statutory guidelines person been placed successful respect of disposal/utilization of semen samples of unmarried person”.

Bindal told The Indian Express, “The argumentation stated that gametes tin beryllium released lone to a spouse and determination was nary argumentation successful place.”

The seat of Justice Prathiba Singh, portion allowing the plea of the parents, recorded that Preet Inder had fixed his “express consent” for preservation of his semen sample, and helium had intelligibly stated that helium was consenting to spell for semen freezing for fertility preservation, “which intelligibly means for the purposes of having progeny oregon for procreation”.

“The lad of the petitioners intended for the semen illustration to beryllium utilized successful bid to carnivore a child. He whitethorn person hoped to unrecorded aft chemotherapy but quality willed otherwise. From the consent fixed for semen illustration preservation, the deceased son’s past privation tin besides beryllium discerned. When helium passed away, the parents being the heirs of the deceased, and semen samples being familial worldly and constituting property, the parents are entitled for merchandise of the same,” the seat recorded successful its 84-page verdict.

Noting that successful India “it is not antithetic for grandparents to exclusively bring up children particularly successful the lack of the existent parents owed to separation, divorcement oregon demise”, the seat said “the anticipation of grandparents to proceed the bequest of their young deceased lad who specifically got his semen illustration preserved… cannot beryllium defeated”.

Grandparents, the seat said, are “equally susceptible of bringing up their grandchildren successful a mode truthful arsenic to integrate them into society… In the contiguous case, the projected kid whitethorn beryllium calved done an identified surrogate parent oregon by fertilization of the sperm with a consenting woman who whitethorn beryllium identified by the petitioners done IVF”.

Noting that the Surrogate Act and the ART Act, 2021, bash not woody with specified a situation, the High Court, exercising its bonzer jurisdiction, said “under the prevailing Indian law, determination is nary prohibition against posthumous reproduction if the consent of the sperm proprietor oregon ovum proprietor tin beryllium demonstrated”.

It besides relied connected overseas jurisprudence and cited instances from Israel, wherever the parents of a 19-year-old worker killed successful 2002 successful Gaza obtained ineligible support to usage their son’s sperm postmortem which led to a girl being calved from the deceased’s sperm, and Germany wherever a brain-dead large pistillate was kept live successful an effort to prevention her pregnancy.

It analysed countries wherever posthumous reproduction arsenic good arsenic postmortem sperm retrieval (PMSR) is permissible and the conditions stipulated successful specified jurisdictions.

The High Court besides relied connected the principles of the Hindu Succession Act to regularisation that parents are entitled to the merchandise of the sperm, which is simply a biologic worldly belonging to the deceased, arsenic the Act notes that successful the lack of spouse oregon children, the parents are the Class-1 ineligible heirs of the deceased. It concluded that reproductive worldly specified arsenic a semen illustration oregon an ovum constitutes ‘property’ oregon an ‘estate’.

Following the ruling, Preet Inder’s parent Harbir Kaur, 62, told The Indian Express implicit telephone that she had been awaiting the judgement since May this twelvemonth erstwhile it was reserved. “What helium (Preet Inder) could not do, we volition bash it for him. Our kid got justice, arsenic did we. What was ours, was truthful precious, and contiguous we yet get it back. Losing my lad was heartbreaking, we had mislaid meaning successful our life. I was warring for my aboriginal and this verdict is godsend.”

Father Gurvinder Singh, 68, a retired engineer, said they approached lawyers aft the infirmary refused to merchandise the illustration since nary line existed. “They said if we get a tribunal order, they volition merchandise it. So past I started speaking to lawyers. We volition spell for surrogacy done a household member. No 1 has opted for surrogacy oregon IVF successful our household before, truthful we request to commencement readying but we volition bash it now, arsenic soon arsenic possible,” helium said.