CAUSE TITLE:
Gurvinder Singh & Anr. v. Government of NCT of Delhi & Ors.
DATE OF ORDER:
4 October 2024
JUDGE(S):
Justice Prathiba M. Singh
PARTIES:
- Petitioners: Gurvinder Singh & Harbir Kaur
- Respondents: Government of NCT of Delhi, Sir Ganga Ram Hospital, Ministry of Health and Family Welfare (MoHFW)
SUBJECT:
The present case relates to the writ petition filed by the two parents of a deceased young man, Gurvinder Singh and Harbir Kaur. It has been filed to get their frozen semen sample released from the Sir Ganga Ram Hospital. The semen sample was meant for surrogacy purposes so that the lineage of their deceased son could be further carried out posthumously. The respondents Sir Ganga Ram Hospital and the Government authorities agreed to return the sample in the absence of orders from the courts. According to it, this writ petition is filed. At its roots, this case puts to test the applicability of provisions offered under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act) and the Surrogacy (Regulation) Act, 2021 (SRA) in the scenario of posthumous use of reproductive material.________________________________________
IMPORTANT PROVISIONS:
1. Article 226 of the Constitution of India:
- This provision grants the High Court the power to issue writs, including mandamus, to any person or authority for enforcing rights or duties. The petitioners invoked this Article to seek directions from the court for the release of their deceased son’s semen sample from the hospital.
2. Assisted Reproductive Technology (Regulation) Act, 2021:
- Section 2(1)(h): Defines 'gamete donor,' meaning a person who donates their gametes (sperm or eggs) for assisted reproduction. In this case, the petitioner’s son is considered a 'gamete donor.'
- Section 21(1)(g): Prohibits the sale, transfer, or use of gametes or embryos for commercial purposes, except under the conditions specified in the Act.
- Section 29: Places restrictions on the sale, transfer, or donation of gametes and provides strict regulation over their storage and usage. The hospital argued it could not release the semen sample without adherence to these guidelines.
- Section 22(2): Relates to the disposal or transfer of gametes, which must follow specific legal guidelines in cases where the donor is deceased. The petitioners contended that this provision should allow them to claim their son’s semen sample, but the court explored whether such a claim was permissible without explicit consent from the donor.
3. Surrogacy (Regulation) Act, 2021:
- Section 2(1)(h): Defines an 'intending couple' as a man and woman who seek surrogacy to have a child. The petitioners were not an intending couple, as defined by the Act, and therefore, did not qualify for surrogacy.
- Section 2(1)(r): Defines 'surrogacy' and outlines its legal requirements, including the rights of the child and the obligations of the commissioning couple. The petitioners argued that they should be allowed to use their son’s genetic material to fulfill his legacy, but the respondents claimed they did not meet the eligibility requirements under this section.
- Section 4(ii)(c): Lists the conditions for surrogacy, which includes the requirement that the commissioning couple should be married and within a certain age range. The petitioners, being the deceased’s parents, did not fulfill these criteria.
BRIEF FACTS:
1. Background:
- On 22nd June 2020, the petitioners' son, Preet Inder Singh was diagnosed with Non-Hodgkin's Lymphoma, a type of cancer. Before chemotherapy started which may trigger sterility, he chose to cryopreserve his semen at the fertility lab of Sir Ganga Ram Hospital. Before his treatment had even begun, he agreed to cryopreservation on 27th June 2020. He died of cancer on 1st September 2020 when he was just 30 years old.
- The petitioners approached the hospital after the death of their son concerning the release of the frozen semen sample for the surrogacy wishes of his parents so that they may carry on the legacy of their son using genetic material. The hospital refused to do so without court orders, stating it lacked legal provisions to handle the case in such a manner.
2. Petition Filed:
- The petitioners came before this court in terms of Article 226 of the Constitution of India seeking a writ of mandamus directing Sir Ganga Ram Hospital to release the semen sample of their son. They claimed that the hospital had no reasonable justification for retaining it and being the legal heirs of their son, they are entitled to his genetic material. The hospital however contended that the semen could not be dispensed with in the absence of statutory guidelines or proper legal provisions, more so, because the deceased was not married.
3. Legal Standpoint:
- The petitioners contended that the semen should be returned to them as it could be inferred that their son who gave his consent for the cryopreservation of the semen intended to use it for reproduction at some future stage. The respondents, among them the Ministry of Health and Family Welfare, however, stated that the petitioners had no locus standi to assert any claim over the semen or its deployment for surrogacy because they were not an 'intending couple' within the meaning of the ART Act and SRA.
PROCEDURAL HISTORY:
- On December 24, 2021, the High Court issued a notice concerning this matter. In the course of further hearings, the hospital established that the semen sample was kept, but the same could not be made available as there was no existing law or policy per se for such an eventuality. The Ministry of Health and Family Welfare was subsequently added as a party to the proceedings for purposes of clarification, and both parties made their respective submissions.
QUESTIONS RAISED:
- In the case of a deceased unmarried person, can the frozen sperm be given to his or her parents?
The court was faced with primary questions about the legality of the distribution of the semen sample to the appellants (parents) and their right to use it for their reproductive health endeavors. - Can legal heirs use the SRA or the ART Act to make use of semen samples after a person is dead?
The court sought to establish whether any of the parent’s acts had provisions that permitted the parents to take the genetic materials of their son for any reproductive and commercial purposes. - How are reproductive matters like semen treated by the law?
The court also considered whether it was possible to regard semen as ‘property’ which can be passed on to legal heirs or conveyed to them.
ARGUMENTS ADVANCED BY THE PETITIONERS:
1. Parents as Legal Heirs:
The petitioners argued that they were Class I legal heirs of their son and, therefore entitled to his semen sample. They further contended that the express prohibition against the transfer of semen samples to legal heirs was absent in the ART Act and the absence of statutory guidelines for this purpose should not leave them deprived of the sample.
2. Consent for Cryopreservation:
The petitioners asserted that their son’s intention to undergo semen cryopreservation before the commencement of chemotherapy was indicative of the fact that he wanted to preserve his ability to reproduce. They contended that his act of consent should be understood as an indication that he desired that the semen would be used for reproductive purposes even in death.
3. Right to Continue Legacy:
The petitioners explained that the main reason behind their request to release the semen sample was to further their son’s lineage and comply with what they believed to be his silent desire to have a child. In addition, they asserted that they were ready to take total responsibility for any issues arising from a child born via surrogate.
ARGUMENTS ADVANCED BY THE RESPONDENTS:
1. Lack of Legal Provision:
The hospital contended that it could not provide the semen sample as the ART Act and SRA were silent on the legal framework concerning the release of such genetic materials to the parents of a dead single person. The Ministry of Health and Family Welfare also maintained that the petitioners were not ‘intending parents’ to whom the provisions of the ART Act or SRA applied, and thus had no legal rights upon the semen sample.
2. No Written Consent for Posthumous Use:
The respondents opined that even if the deceased had indeed given his consent for his semen to be cryopreserved, he never unequivocally agreed to allow his sperm to be used posthumously. It will therefore go against existing laws which posit that there is a prohibition on posthumous reproduction unless and until the dead person has unequivocally expressed their consent to such a result.
3. Public Policy Concerns:
Health implications have been clearly stated and the respondents indicated that there are no defined limits concerning the legislation which favor or disfavor the parents based on using the reproductive elements of a deceased person. It was also pointed out that such issues relating to families seeking to be involved in such practices are highly concerning in terms of ethics, moral, and legal heritage issues which are to be judiciously identified by statute and not by the courts.
ANALYSIS BY THE COURT:
- Interpretation of ART Act and SRA:
The analysis of the ART Act and the SRA was exhaustive, and the court remarked that in neither Act there was a provision regulating the use of a dead person’s semen by parents after death. It further adds that the definition of ‘intending parents’ within this Statute was not extended to the caregivers or any other legal beneficiaries. Hence the petitioners were unable to request for the deceased’s seminal fluid for reproduction or surrogacy reasons. - Consent as a Precondition:
The court emphasized that given the international trends and the developing legal systems, posthumous reproduction ought to be predicated on the express provision of consent by the deceased. In light of the deceased's lack of explicit consent for the intended proposed use of his semen, the court was unable to accede to the petitioners' prayers for the release of the specimen. - Public Interest and Legislative Gaps:
The tribunal correctly understood the subtleties of this case in terms of the involvement of emotions and its value in ethics, but ruled that availability of posthumous reproduction of reproductive material should fall under control by law rather than anybody's beliefs or feelings. It recommended that the Parliament might consider reconsidering this aspect of posthumous reproduction for example, in the ART Act and amendments to the SRA within a reasonable period; however, the relevant laws in existence at the time did not offer the remedy sought by the petitioners.
CONCLUSION:
The writ application was, in the end, rejected by the High Court, finding no legal ground on which the frozen semen sample could be handed over to the petitioners. The court was of the view that the parents of the deceased son could not claim or use his semen for surrogacy purposes under the ART Act or SRA, especially where there was no clear evidence of consent. While appreciating the sorrow of the petitioners and the need to carry on with their son’s legacy, the court however stated that within the current legal framework, there was no room for posthumous reproductive use as was being sought and that such an issue would be one for the legislature to address and not the courts to interpret.
