1. Widow seeks to use cryopreserved embryos of deceased husband for IVF — Consent obtained under ART Act. (Para 1 )
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2026 Supreme(Online)(Ker) 59740
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Harisankar V. Menon, J
PRIYA SREERAJ – Appellant
Versus
UNION OF INDIA – Respondent
WP(C) 22457/2025
Advocates:
For the Appellants/Petitioners: B. Renjithkumar, Clara Sherin Francis
For the Respondents: K. Arjun Venugopal, Dinesh Thankappan
For the Appellants/Petitioners: B. Renjithkumar, Clara Sherin Francis
For the Respondents: K. Arjun Venugopal, Dinesh Thankappan
Posthumous reproduction may be permitted based on the deceased's inferred consent and the surviving partner's interest in parenthood. Technical non-compliance with statutory consent forms by a clinic does not bar the use of embryos if the deceased's intention to permit reproductive use is evident.
Headnote:(A) Assisted Reproductive Technology (Regulation) Act, 2021 - Section 22(1)(a) - Assisted Reproductive Technology (Regulation) Rules, 2022 - Rule 13(1)(f)(iv) and Form 9 - Written informed consent for use of cryopreserved embryos after death of spouse - Requirement of mandatory written consent of all parties - Use of non-statutory consent form by medical facility - Inferred consent of deceased husband - Partner's interest in becoming a parent - Where a consent form, though not in the statutory format, indicates a preference for embryos to be used for reproduction rather than destroyed or used for research, it can be inferred that the deceased intended the surviving spouse to be permitted to use them. (Paras 6, 11, 12)
(B) Posthumous reproduction - Deceased’s inferred consent and the partner’s interest in procreating to be taken into account - Decisions to prohibit such reproduction should not be based solely on principles of autonomy and bodily integrity if there are indications that the deceased would have agreed to the use of gametes or embryos. (Para 14)
Facts of the case:
A woman sought to utilize embryos cryopreserved during infertility treatment following the death of her husband. The hospital refused the request, contending that the consent form executed at the time of cryopreservation did not comply with the statutory Form 9 and did not explicitly permit the surviving spouse to use the embryos, but instead permitted their use by unknown couples. The petitioner argued that this constituted substantial compliance and that the deceased's intention was for the embryos to be used for a meaningful reproductive purpose.
Findings of Court:
The court observed that while the medical facility failed to obtain consent in the prescribed Form 9, the consent form actually used showed that the deceased husband opted for the embryos to be used by others rather than letting them perish or be used for research. This indicated a clear intention that the embryos be used for reproduction. The court held that the technical failure of the hospital to use the statutory format should not result in the denial of the wife's request to become a parent.
Issues: Whether the failure to execute the statutory consent form (Form 9), combined with a non-statutory form that permits the use of embryos by third parties, precludes the surviving spouse from using those embryos for assisted reproduction under Section 22(1)(a) of the ART Act.
Ratio Decidendi: In matters of posthumous reproduction, the deceased's inferred consent and the partner's interest in parenthood are the primary considerations. If the deceased's documented preferences indicate a desire for the embryos to be used for reproduction, such intention prevails over technical non-compliance with the statutory format of the consent form caused by the medical facility.
Result: Writ petition allowed, directing the hospital to allow the petitioner to use the preserved embryos of the deceased husband for the purpose of assisted reproduction.
Legal Category Hierarchy
Table of Contents
2. Petitioner argues substantial compliance; Respondent contends consent did not permit wife's use and raises ethical concerns. (Para 3 , 4 )
3. Statutory consent requires explicit options for surviving spouse; hospital's non-compliance does not defeat wife's request. (Para 6 , 7 , 8 , 9 , 11 , 12 , 13 , 14 )
4. Deceased's inferred consent and partner's interest in procreation must be respected despite non-compliance with prescribed form. (Para 12 , 13 , 14 )
5. Writ allowed — respondent directed to permit petitioner to use preserved embryos for assisted reproduction. (Para 14 )
6. What is the requirement of written informed consent under Section 22(1)(a) of the ART Act?
Section 22 requires written informed consent of all parties seeking ART before any treatment or procedure. (Para 6 )
7. What options are available to a husband under Form 9 regarding disposal of embryos upon his death?
Form 9 provides three options: embryos to perish, handed over to wife, or used for research purposes. (Para 6 )
8. Can a clinic's deviation from the prescribed Form 9 invalidate a surviving spouse's claim to use embryos?
No, if the deceased's intention to use embryos is clear, the deviation does not invalidate the claim. (Para 12 , 13 )
9. What factors should courts consider in posthumous reproduction cases under the ART Act?
Courts should consider the deceased's inferred consent and the partner's interest in becoming a parent. (Para 14 )
JUDGMENT
This writ petition is presented by the wife of one Sreeraj, who passed away on 31.03.2021. The petitioner and the deceased husband were admittedly undergoing infertility treatment with the 4th respondent hospital. Embryos were admittedly cryopreserved during the lifetime of the deceased husband. The petitioner states that the 4th respondent hospital at the time of cryopreservation on 22.12.2022, had also obtained consent at Ext.P3. Subsequently, after the death of the husband, the petitioner sought for utilising the embryos for the purpose of IVF procedure. However, when such a request is made, the 4th respondent hospital informed the petitioner that unless a specific written consent with reference to the provisions of Section 22(1)(a) of the Assisted Reproductive Technology (Regulation) Act, 2021 (hereinafter referred to as the ‘ART Act’) is available, the procedure cannot be continued. It is in such circumstances, the petitioner is before this Court seeking a direction to the 4th respondent to release, and also to allow the petitioner to use the preserved embryos of her deceased husband for the purpose of assisted reproduction.
2. I have heard Smt.Clara Sherin Francis, the learned counsel for the petitioner, as well as Sri.K.Arjun Venugopal, the learned Central Government Counsel for respondents 1 and 2, and Sri.Dinesh Thankappan, the learned counsel for the 3rd respondent.
3. Smt.Clara Sherin, the learned counsel, would point out that Ext.P3 referred to above, obtained by the 4th respondent hospital at the time cryopreservation is to be taken as a case of “substantial compliance” of the requirements under Section 22(1)(a) of the ART Act. She would further point out the observations/recommendations at paragraph 4.17.12 of the 129th report of the Department-related Parliamentary Standing Committee on Health and Family Welfare, as per which even collection of gametes “Posthumously” is advised. She would further add that, going by the afore report, there is no prohibition, with reference to the ART procedure, merely for the want of consent from the deceased husband. She would also place considerable reliance on the judgment of the Delhi High Court in W.P.(C) No.15159 of 2021 dated 04.10.2024, wherein the Delhi High Court permitted the parents of a deceased male, who died on account of cancer and was admittedly unmarried, to use the semen which was admittedly preserved.
4. Per contra, Sri.Arjun Venugopal, the learned Central Government Counsel, would invite the attention of this Court to the form prescribed under the Assisted Reproductive Technology (Regulation) Rules, 2022 (for short ‘Rules’) - Form 9 - to point out that there is a specific provision as per which the husband could permit the embryos to be “handed over to the wife”, whereas, in the case at hand, the consent at Ext.P3 did not contain any such option. According to him, the consent at Ext.P3, on the contrary, had only permitted the use of embryos by “unknown couples”. Therefore, he would submit that the deceased husband never wanted the petitioner wife to use the embryos in the event of his death. Therefore, he would further add that the prayer made in the writ petition is in fact against the will of the deceased husband, which is not to be permitted. Sri.Arjun would further state, with reference to the averments in the counter affidavit filed on behalf of the 1st respondent, that there are various ethical/social/legal issues in the case at hand since, admittedly, the deceased would not have wanted the wife to use the embryos since he may have wanted the wife to remarry. Similarly, he would state that there are questions with reference to inheritance of the properties also, on account of which the legal/social issues also require to be considered while considering the prayer made in the writ petition. With reference to the judgment of the Delhi High Court relied on by the learned counsel for the petitioner, it is the submission made by the learned Central Gove
