Semen constitutes property under Indian law, allowing parents of a deceased individual to claim it for posthumous reproduction, provided there is consent for its use.

JUDGMENT

Prathiba M. Singh, J.

1. This hearing has been held through hybrid mode.

Introduction and Background Facts

2. In M. v. HFEA the Court of Appeal noted the anguish of a woman ‘A’, who was diagnosed with cancer at the age of 21, and wished to conceive children1:

“In other words, the Committee simply did not

1 [2015] EWCA Civ 1289; See also, T Beider and Y Ben-Baruch, Something from me (Hebrew, 2014).

W.P.(C) 15159/2021 Page 1 of 84 Signature Not Verified Digitally Signed consider the possibility that this is a case where A said something along these lines (if I may be bold as to attribute words to A that A never used and to which she is not capable of answering): “This is what I want to do. I want to do it whatever you want to tell me about what it involves. I trust my Mum and Dad to make the right decisions about all this when I am gone because they brought me up so well. It is my only chance.” That possibility might explain why there was no detailed discussion involving A and her mother of the details of what would need to happen if A’s eggs were to be used between January 2010 and her death. In fact there was some discussion very shortly before her death, to which the Committee failed to refer. The Committee did not consider whether the inherent probabilities of the case might lead to this sort of conclusion”

3. The sentiments of profound loss and the yearning to preserve a connection with the deceased, as expressed by the mother in the above passage, finds its parallel in the present case. The Petitioners, grieving the untimely demise of their son, seek to continue his legacy by obtaining his preserved semen sample from the Respondent No. 3—Sir Ganga Ram Hospital.

4. The brief background is that the present petition has been filed under Article 226 of the Constitution of India by the Petitioners i.e., Petitioner No. 1-Gurvinder Singh, and Petitioner No. 2-Harbir Kaur, seeking release of their deceased son’s-Late Preet Inder Singh’s frozen semen sample stored in the fertility lab of the Respondent No. 3-Sir Ganga Ram Hospital.

5. The Petitioners’ son was diagnosed with Non-Hodgkin’s Lymphoma on 22nd June, 2020, which is a form of cancer and was admitted in the Ganga Ram Hospital (hereinafter, ‘Hospital’). He was to be administered W.P.(C) 15159/2021 Page 2 of 84 Signature Not Verified Digitally Signed chemotherapy and at that stage, he was advised for storage of his semen in order to deal with any infertility issues that may occur due to chemotherapy. The deceased had then given consent for freezing of his semen sample, and his semen sample was preserved in IVF lab of the Respondent No.3 on 27th June, 2020 vide registration no. 2726372. Unfortunately, he passed away at the age of 30 years on 1st September, 2020. As per the Petitioners, the advice of doctors was that chemotherapy could result in infertility, which led to this step being taken by the deceased son. The frozen semen sample has been preserved at the Hospital as has been confirmed by Mr. Subhash Kumar, ld.

Counsel for the Ganga Ram Hospital.

6. The Petitioners are the parents of the deceased. Petitioner No. 1 is the father, and Petitioner No. 2 is the mother of the deceased. The Petitioners’ son passed away at a young age of 30 years on 1st September, 2020. Prior to his death, when he was diagnosed with Non-Hodgkin’s Lymphoma, which is a form of cancer. In June, 2020, upon the advice of doctors, he is stated to have availed of the services of the fertility lab for semen cryopreservation at the Hospital for storing his semen sample. They approached the Hospital on 21st December, 2020, for release of the frozen sperm stored in the fertility lab of the Hospital. The case of the Petitioners is that they wish to carry on the legacy of their deceased son, and hence they approached the Hospital for release of the semen sample. The Hospital however took the position that the same could not be released without appropriate orders from the Court. The relief prayed for in this wri