Can Parents Use a Deceased Unmarried Son’s Sperm? Centre Challenges Delhi HC Order

A fresh legal debate has emerged after the Union Ministry of Health and Family Welfare challenged a Delhi High Court order that allowed parents to access their deceased, unmarried son’s frozen sperm. The case raises important questions about consent, inheritance, and the scope of India’s assisted reproduction laws.

What Did the Delhi High Court Decide?

In October 2024, a single judge of the Delhi High Court directed Sir Gangaram Hospital to release the frozen semen of a man who had preserved it while undergoing treatment for a terminal illness. The court observed that Indian law does not expressly prohibit posthumous reproduction, provided the consent of the person who stored the sperm can be established.

The man was unmarried at the time of his death, which made the case legally complex. However, the court held that the absence of a spouse alone could not be a reason to deny access.

Why Has the Centre Challenged the Order?

The Union Health Ministry has argued that the High Court’s decision goes beyond existing laws. According to the Centre, Indian statutes do not recognise parents as eligible beneficiaries for posthumous reproduction.

The government has raised two key questions:

• Can courts recognise “intending grandparents” as lawful beneficiaries?
• Can frozen sperm or eggs be treated as inheritable property without clear consent?

The Centre maintains that such issues require legislative backing, not judicial interpretation.

Consent Is the Core Issue

A major concern raised by the government is the lack of explicit written consent. The deceased man had not left any documented permission allowing his semen to be used after his death. The Centre argued that the High Court relied on foreign judgments where written consent was clearly available, which was not the case here.

What Do ART and Surrogacy Laws Say?

The government has relied on the Assisted Reproductive Technology (ART) Act and the Surrogacy Regulation Act to support its case. These laws:

• Allow assisted reproduction only for commissioning couples or commissioning women
• Do not recognise parents of a deceased individual as eligible parties
• Require strict compliance with consent and age-related conditions

According to the Centre, allowing grandparents to commission a child would go against legislative intent and child welfare safeguards.

Concerns About Child’s Legal Status

The Centre also warned that a child born through such posthumous reproduction may not have legally recognised parentage under current laws. This could create uncertainty regarding the child’s identity, inheritance rights, and legal status.

The government argued that emotional considerations should not override statutory requirements, especially when the welfare of a future child is involved.

What Happens Next?

A division bench of the Delhi High Court has asked the Centre to explain the delay in filing its appeal. The court will decide whether to hear the case after reviewing this explanation. Until then, the hospital has not released the frozen semen.