Delhi High Court has been examining legal rights over the frozen semen sample of an unmarried man after his death. The bench was hearing a plea by a couple seeking directions to a hospital to release the frozen sperm sample of their deceased unmarried son.
The parents had moved High Court after Sir Ganga Ram Hospital refused to hand over the sample of their son’s semen to continue the family line. Citing the reason not to hand over the semen to the deceased’s parents, the hospital submitted that there is no law to hand over a semen sample to parents
Justice V. Kameswar Rao has posted the matter for 13 May, 2022.
The elderly couple had lost their son in September 2020. The deceased was suffering from cancer and was undergoing treatment in Sir Ganga Ram Hospital.
During the procedure, the hospital had informed his parents that chemotherapy may make their son infertile. Therefore, his semen sample was preserved in June 2020.
The petitioners have submitted before the High Court bench that following the demise of their son, they are the “sole claimants” over his remaining “bodily assets” and as such, the hospital’s action of denying them access to the semen sample is a violation of their rights.
To have a broader view, Delhi High Court had issued notices to the Centre, Delhi government and Sir Ganga Ram Hospital to know their stand on December 24.
The hospital informed the High Court bench that the Centre government’s gazette about ART regulations don’t specify the procedure of disposal or utilization of semen sample of an unmarried man after his death.
“The ART (Assisted Reproductive Technology) Act, ICMR guidelines, Surrogacy Bill/Act are silent about the legal heirs of the unmarried deceased men to whom the semen frozen sample of semen to be released,” stated an affidavit filed by Director Medical, Sir Ganga Ram Hospital.
The affidavit filed by the hospital further stated, “There are no ART laws nor legal procedure in the country to release the frozen semen sample of unmarried male to parents/legal heirs. The recent Gazette of India, Ministry of Law & Justice, in the ART regulation Act, 2021 also does not mention regarding disposal/utilisation of semen sample of an unmarried person.”
Senior advocate Dinesh Kr Goswami, representing the petitioners, referred to Sanjeev Gulati v. Ganga Ram Hospital 2005 SCC OnLine Del 1334 which reads that an aggrieved person may approach a Court under Article 226 against private bodies that exercises public functions and is not a ‘State’ under Article 12, if there is a public law element involved.
However, the hospital, in its affidavit filed through advocate Subhash Kumar, had submitted that hospitals are allowed to preserve sperm with the permission of a living person but legal rights change after the person is dead.
The hospital also referred to a Calcutta High Court judgment where it had ruled that only wife has the legal right over preserved semen sample of a deceased man.
In Ashok Kr. Chatterjee vs Union of India judgment, the Calcutta High Court had noted that only dead man’s wife has the right over preserved sperm.
The court had noted, “The sperm preserved at the St. Stephen Hospital belonged to the deceased and, since the deceased was in matrimonial relationship with the respondent no. 4 (wife of deceased) at the juncture of his demise, the only other person, apart from the deceased, having any right to it is his wife.”
“The father-son relationship of the petitioner and the deceased does not entail any such right of the petitioner to the progeny of his son. As such, the right espoused by the petitioner for himself is illusory and non-existent,” the bench added.