Court orders preservation of dead man's semen as mother seeks it for lineage

The Bombay High Court has directed a Mumbai-based fertility centre to preserve the frozen semen of a 21-year-old cancer patient who died earlier this year, after his mother approached the court seeking to use it to continue the family's lineage.

The mother, a resident of Santacruz in Mumbai, told the court that her son had been diagnosed with Ewing sarcoma — a rare form of bone and soft tissue cancer. Before starting chemotherapy, his oncologist advised the family to freeze his semen as the aggressive treatment could affect his fertility.

According to the mother's petition, the family was confident the young man would recover, but were unaware that he had independently signed a consent form instructing the fertility centre to destroy his semen if he did not survive. The family, which now comprises only women following the deaths of the father and uncle, said the son was the sole male heir.

The 21-year-old passed away on February 16 this year. Amid their bereavement, the family requested the fertility centre to transfer the preserved semen to a facility in Gujarat for further medical advice. However, the centre refused without a legal directive, citing the man's signed instructions.

Left with no other option, the mother wrote to various government offices but received no response. She then filed a petition in the Bombay High Court.

The plea came up before Justice Manish Pitale, who observed that the matter raises significant questions about how semen or gametes should be handled after the donor's death under the Assisted Reproductive Technology (Regulation) Act, 2021, and its rules. "This becomes particularly significant in the present case, for the reason that the deceased, being the son of the petitioner, was unmarried at the time of his death," Justice Pitale noted.

Appearing for the Union of India, Advocate Yashodeep Deshmukh referred to a pre-ART Act judgement of the Delhi High Court, where frozen semen was handed over to the parents of a person. However, he pointed out that unlike that case, the young man here had explicitly opted for disposal of his samples after his death.

The court also took note that in the Delhi High Court judgement, directions had been issued to the Ministry of Health and Family Welfare to consider framing appropriate laws or guidelines for posthumous reproduction.

Deshmukh sought time to verify whether any such guidelines now exist under the ART Act.

Meanwhile, to ensure that the mother's plea does not become futile, the Bombay High Court ordered the fertility centre to preserve the frozen semen until the matter is decided.

- Ends