Can children be conceived after the death of a parent, and can preserved or frozen sperm be treated like inheritable property that can be passed on to legal heirs other than a spouse? It is a tricky legal issue in India, and courts remain divided over families that wish to have children—or grandchildren—using Assisted Reproductive Technology (ART).
The challenge in using frozen sperm from a deceased parent for reproductive purposes came into sharp focus recently when the Union health ministry challenged a Delhi High Court ruling directing a reputed local hospital to release the frozen semen of an unmarried deceased man to his parents. The ministry’s appeal centred on two key questions: can judges create new heirs, other than a spouse, for children conceived after death, and can gametes or sperm be treated as inheritable property that may be passed on to legal heirs other than a spouse without written consent?
The case dates back to October 2024, when a single judge held that there was no prohibition on posthumous reproduction if the consent of the sperm or egg owner could be demonstrated, and directed the hospital to release the frozen gametes of the deceased man to his parents. The deceased son, aware of his terminal medical condition—he was a cancer patient—had left his semen in a cryo-preserved state at the hospital.
Posthumous reproduction refers to the process of conceiving a child using ART after the death of one or both biological parents—or, in the Delhi High Court case, an unmarried male. Under prevailing Indian law, there is no prohibition against posthumous reproduction if the consent of the sperm or egg owner can be demonstrated. However, the case raised complex questions regarding the rights of the child, the absence of a legal father, and the validity of using ART without a living, consenting partner. In recent years, courts have increasingly considered frozen gametes as “property” or “estate” that can be inherited by parents.
The elderly couple involved in the case had been locked in a four-year legal battle and said they were relieved by the verdict. “We were very unlucky to lose our son. But the Court has given us a very precious gift. We would now be able to get our son back,” the mother, Harbir Kaur, told the BBC. She and her husband, Gurvinder Singh, had petitioned the High Court after Delhi’s Ganga Ram Hospital refused in December 2020 to release their son’s semen, which was stored in its fertility lab.
Their 30-year-old son, Preet Inder Singh, had been diagnosed in June 2020 with Non-Hodgkin’s Lymphoma and admitted to the hospital for treatment. Before chemotherapy began, doctors advised him to store his semen, as the treatment could adversely affect sperm quality. Preet Inder, who was unmarried, agreed, and his sample was frozen on June 27, 2020. He died in early September. When his grieving parents later sought access to the frozen sperm, the hospital declined their request, prompting them to approach the Delhi High Court.
The couple, now in their 60s, told the Court that they would raise any child born using their son’s semen. They further submitted that, in the event of their death, their two daughters had given undertakings to assume full responsibility for the child.
In her order, Justice Prathiba Singh had stated that under Indian law there was no prohibition against posthumous reproduction if consent had been given by the sperm owner. She added that the parents were entitled to the semen sample because, in the absence of a spouse or children, they were the legal heirs under the Hindu Succession Act.
The couple said they approached the Court to carry forward their son’s “legacy” and preserve a connection with him. The Court was informed that the family was considering surrogacy and that a relative had agreed to act as the surrogate. Commercial surrogacy remains illegal in India.
Justice Singh further observed that the semen sample could be treated as “property” since it formed part of the individual’s biological material, comparable to a human corpse or its organs. The Court also ruled that there was no prohibition on releasing sperm samples to a person other than a spouse.
In contrast, the Bombay High Court had earlier passed an interim order directing a city-based fertility centre to preserve the frozen semen of a deceased man pending the hearing of a petition filed by his mother, who sought to use it to continue the family line. The woman had approached the Court after the fertility centre refused to release the semen, citing consent forms in which her son had requested that the sample be discarded after his death. He had frozen his semen while undergoing chemotherapy.
A bench headed by Justice Manish Pitale noted that discarding the sample pending adjudication would render the petition infructuous. As an interim measure, the fertility centre was directed to ensure the safe storage of the frozen sample during the pendency of the case.
The bench observed that the petition raised significant questions regarding the preservation of semen after death under the Assisted Reproductive Technology (Regulation) Act, 2021. The deceased man was unmarried at the time of his death. His mother argued that her son had signed the consent form without consulting family members. After his death, she sought permission to transfer the sample to a Gujarat-based IVF centre, but the fertility centre refused, citing the requirement of court authorisation under the new Act.
These contrasting judicial approaches underline the lack of consistency in Indian courts on such contentious issues. Nor is there a global consensus regulating surrogacy or the use of frozen embryos, eggs, or sperm.
In India, such matters fall under the Assisted Reproductive Technology Act, 2021, which specifies eligibility conditions for those seeking ART services. Clinics may offer ART only to married couples or single women within prescribed age limits. This is hardly encouraging for the estimated 27 million infertile couples in India.
Critics argue that the Parliamentary Standing Committee on Health and Family Welfare’s recommendations do not adequately address the reproductive rights of infertile couples or unmarried men facing terminal illnesses. The Act, they contend, perpetuates patriarchal family structures and fails to accommodate modern technology, evolving family dynamics, and the rapid growth of ART centres nationwide.
India’s engagement with ART dates back to 1978, when the country’s first test-tube baby, Kanupriya alias Durga, was born in Kolkata. Since then, ART centres have proliferated, long before a legal framework existed. Estimates suggest there are over 40,000 ART clinics in India. Initial regulatory efforts came in 2005 through ICMR guidelines, followed by Law Commission recommendations in 2009 advocating comprehensive legislation.
Parliament eventually enacted the Assisted Reproductive Technology (Regulation) Act, 2021, alongside the Surrogacy (Regulation) Act, 2021. These laws aim to regulate clinics and banks, prevent misuse, ensure ethical practices, and establish oversight bodies. They also prescribe stringent penalties for violations, including heavy fines and imprisonment.
However, while the legislation seeks to curb illegal practices, it raises serious ethical and legal concerns. The most persistent criticism is its exclusion of unmarried men, divorced or widowed men, cohabiting heterosexual couples, transgender persons, and homosexual couples. By limiting ART and surrogacy to narrowly defined categories, the law significantly constrains reproductive choice.
A landmark case illustrates a rare exception. A man who died of cancer had frozen his sperm in Israel and left behind clear evidence of intent for posthumous reproduction. His parents and sister sought access to the sperm for surrogacy, with the widow relinquishing her claim. The Delhi High Court allowed the request, holding that the deceased’s documented consent and conduct were sufficient under Indian law.
Such cases remain uncommon. Most terminally ill patients do not anticipate death with sufficient clarity to record explicit consent.
Globally, ART remains deeply divisive, with the US adopting a more permissive, market-driven approach, while Europe favours tighter regulation and prioritises the rights of the child.
In India, courts have occasionally shown flexibility, even as the Health Ministry remains restrictive.
In short, while science has made posthumous parenthood possible, the law continues to lag behind. More liberal, inclusive frameworks for ART and surrogacy remain—quite literally—unborn.
—The writer is former Senior Managing Editor, India Legal magazine
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