Recently, the Delhi High Court allowed a couple in their sixties to gain access to their now deceased son’s sperm sample, effectively paving the way for posthumous assisted reproduction.
- The Court’s ruling allows individuals other than a spouse to request for the retrieval of frozen eggs, sperm of a deceased individual.
Case Background
- Sperm Banking for Cancer Patients: Sperm banking is common among cancer patients since cancer treatments such as radiation and chemotherapy can affect sperm count and quality.
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International Practices for Posthumous Reproduction
- Several jurisdictions around the world permit for posthumous reproduction, but with explicit consent.
- Uruguay: Allows posthumous reproduction with written consent, valid for one year.
- Belgium: Permits posthumous reproduction after a six-month waiting period post-death, with requests required within two years.
- Victoria, Australia:
- Allows posthumous reproduction with written or oral consent in the presence of two witnesses, subject to approval from a “patient review panel.”
- Mandates counselling for the parent(s) involved.
- Canada and the UK: Both countries require written consent for posthumous reproduction.
- Israel: Excludes parents from using sperm samples, permitting only the deceased’s female partner to utilise them, though exceptions have been made.
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- Parents’ Request: A 30-year-old man died of cancer in 2020 and his parents sought access to his cryopreserved sperm sample from a hospital after his death.
- Hospital’s Position:
- Refusal to Release Sperm: The hospital denied access to the sperm sample, citing a lack of guidelines for releasing gametes in the absence of a spouse.
- Legal Requirement: The hospital maintained that appropriate court orders were necessary for the release of the sperm.
- Petition for Court Intervention: The petitioners told the court that they, along with their daughters, were “prepared to take full responsibility for any child born via surrogacy using the frozen semen sample”.
- Assisted Reproductive Technology Act, 2021: This law regulates and supervises all fertility and artificial insemination procedures.
Assisted Reproductive Technology (ART)
- ART includes techniques for obtaining a pregnancy by handling the sperm or the oocyte (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.
- These include gamete donation (of sperm or egg), in vitro fertilisation, and gestational surrogacy.
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- Limitations of Assisted Reproductive Technology Rules, 2022: The Assisted Reproductive Technology Rules, 2022 prescribes the procedure for “posthumous retrieval of sperm”.
- However, they only account for scenarios where the deceased is married, and the person seeking retrieval is the surviving partner.
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Government Position
- Ministry of Health and Family Welfare (MoHFW) Affidavit: In an affidavit submitted to the Court, the MoHFW argued that:
- The legislation was not intended to address situations described as “postmortem grandparenthood.”
- The Surrogacy Regulation Act applies only to intending couples or women with medical needs for surrogacy, and does not cover grandparents as “intending grandparents”.
Ruling of the Court
- Applicability of the ART Act: The Court determined that the Assisted Reproductive Technology (ART) Act and its associated rules could not be applied in this case, as the legislation had not come into effect at the time of the son’s death.
- Consequently, there was no prohibition on releasing the gamete to anyone other than a spouse.
- Gametes as Property: The Court accepted the petitioners’ argument that gametes or semen samples can be classified as “property,” since it is part of the individual’s biological material just like “the human corpse or its organs”.
About Surrogacy Act 2021
- Surrogacy is an arrangement in which a woman (the surrogate) carries and delivers a baby for another individual or couple (intended parents) who are unable to conceive or carry a child themselves.
- Surrogacy Act 2021 prohibits commercial surrogacy and permits altruistic surrogacy for intending couples who suffer from proven infertility.
- A child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple or intending woman.
- Abortion is prohibited at any stage of surrogacy except in such conditions as may be prescribed.
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- Legal Basis for Release: The Court relied on the Hindu Succession Act, where parents are considered as Class-1 legal heirs of a deceased in the absence of a spouse or children.
- Prohibition on Posthumous Reproduction: The Court stated that there is no legal prohibition against posthumous reproduction when there is no spouse involved.
- Conditions for Retrieval: The Court emphasised that the transfer of possession of gametes “cannot be automatic.”
- Informed consent and the welfare of any future child must be prioritised in cases of posthumous reproduction.The Court stated that “each case needs to be judged on its own facts, without a general rule.”
- Israel Case: The Delhi High Court cited a specific case in Israel, where the parents of a 19-year-old soldier killed in combat successfully obtained legal permission to use their son’s sperm posthumously, resulting in the birth of a daughter from the sample.
Ethical Considerations Surrounding Posthumous Reproduction
- Consent and Autonomy
- Consent Assumptions: The lack of explicit consent from the deceased raises ethical dilemmas about their wishes regarding posthumous reproduction.
- Autonomy and Individual Rights: Decisions regarding reproductive materials should prioritise the wishes of the individual, as expressed during their lifetime.
- Child Welfare
- Welfare of the Future Child: Considerations about the well-being and emotional stability of a child being raised without one or both genetic parents need to be addressed.
- Family Dynamics
- Family Structure: Posthumous reproduction can complicate traditional family dynamics, creating questions about roles and relationships within families.
- Psychological Impact on Surviving Family Members: The implications for the mental health of surviving family members (e.g., parents or siblings) who may feel the burden or responsibility for the child’s upbringing should be considered.
- Cultural and Religious Considerations
- Cultural Sensitivity: Different cultures and religions have varying beliefs regarding death, reproduction, and the sanctity of life. The decision may face scrutiny from diverse cultural viewpoints.
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Possible Call of Action For Ethical Posthumous Assisted Reproduction
- Need for Comprehensive Legislation: There is an urgent need to address gaps in existing assisted reproduction laws and establish clear regulations within the Assisted Reproductive Technology Rules, 2022, to effectively manage posthumous reproduction issues.
- Surrogate Mother Rights: There should be clear guidelines on the use of a surrogate mother in posthumous reproduction, including her rights and autonomy.
- Importance of Explicit Consent: Emphasise the necessity of having explicit, documented consent for posthumous reproduction to avoid ethical dilemmas.
- SOP for Medical Institutions : Suggest Standard Operating Procedure (SOP) for hospitals and clinics to ensure informed consent is obtained from patients, including conversations about posthumous reproduction during sperm banking.
- Mandatory Counselling: There is a necessity to mandate counselling for the parent(s) involved in posthumous reproduction and provide psychological support.
- Formulate Independent Ethical Review Boards: Establish independent boards at regional or national levels to review and oversee posthumous reproduction cases, ensuring ethical standards are upheld in decision-making processes.
October 19, 2024
