Why Delhi HC allowed a 60-year-old couple to access dead son’s sperm

Sub: Sci

Sec: Biotech

Context:

The Delhi High Court recently granted a couple in their sixties access to their deceased son’s sperm sample, enabling the possibility of posthumous assisted reproduction.

About the case:

A couple in their sixties sought access to their deceased son’s sperm sample, cryopreserved by a hospital after his death from cancer in 2020.
The petitioners wish to carry on the legacy of their deceased son and raise a grandchild.
The hospital refused to release the sperm, citing a lack of guidelines for gamete release when there is no spouse.

Sperm banking:

Sperm banking is the process of collecting and freezing sperm for future use. This can help individuals or couples preserve sperm before medical treatments that might affect fertility or for use in assisted reproductive methods like IVF.
The stored sperm can be used later to help conceive a child.
Common among cancer patients as treatments like chemotherapy and radiation can impact sperm count and quality.

Legal Context:

Assisted Reproductive Technology Act, 2021: The Act regulates and supervises all fertility and artificial insemination procedures in India, but primarily considers cases involving married couples.
Assisted Reproductive Technology Rules, 2022: These rules outline the procedure for posthumous retrieval of sperm. Current provisions only apply when the deceased is married, and the retrieval request comes from the surviving partner.
Surrogacy Regulation Act, 2021: Only applies to intending couples or women needing surrogacy; does not cover grandparents.

International Practices:

Various countries permit posthumous reproduction with explicit consent:

Uruguay: Requires written consent valid for one-year post-death.
Belgium: Allows it after a six-month waiting period, request should be made within two years.
Victoria state (Australia): Permits reproduction with written/oral consent in the presence of witnesses and a patient review panel’s approval.
Canada and UK: Require written consent.
Israel: Excludes the parents and only allows the deceased’s female partner to use the sperm sample. However, some exceptions have been made.

Court’s Ruling:

The court ruled that the ART Act did not apply to the case since it was not in force at the time of the son’s death.
It determined there was no prohibition on posthumous reproduction without a spouse, allowing for the retrieval of the sperm.
The court treated sperm samples as property, referencing the Hindu Succession Act, which designates parents as legal heirs in the absence of a spouse or children.

Ethical Considerations:

The ruling sets a precedent allowing non-spousal parties to claim rights to retrieve gametes.
Ethical concerns include the assumption of consent by the deceased and implications for the child, who would grow up without one genetic parent.
The court emphasized that consent and the welfare of any future child must be considered in such cases.