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4 SAT HOSPITAL REPRESENTED BY ITS MANAGING DIRECTOR, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM, PIN - 695011 BY ADV SHRI.K.ARJUN VENUGOPAL, CGC OTHER PRESENT:

SRI.DINESH THANKAPPAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

“C.R.”

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 4^th respondent hospital. Embryos were admittedly cryopreserved during the lifetime of the deceased husband. The petitioner states that the 4^th 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 4^th 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 4^th 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 3^rd respondent.

3. Smt.Clara Sherin, the learned counsel, would point out that Ext.P3 referred to above, obtained by the 4^th 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 129^th 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 1^st 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