A poignant legal battle over the posthumous use of a deceased man's sperm has reached the Bombay High Court, pitting a grieving mother's desire for a grandchild against the letter of the law and her son's documented wishes. The central government has sought the dismissal of the petition, arguing the man explicitly chose for his sample to perish upon his death.
The Heart of the Legal Dispute
The case involves a woman who lost her son on February 16. He passed away intestate and unmarried after a health struggle. Prior to his death, during medical treatment, he had executed a consent form under the Assisted Reproductive Technology (Regulations) Rules. In this form, he explicitly selected the option that his stored semen sample should "perish" in the event of his demise.
Seeking a legacy, his mother petitioned the Bombay High Court earlier this year. She requested permission to access and transfer the semen sample preserved in a cryobank for the purpose of IVF and surrogacy. Before approaching the court, she had applied to the Maharashtra authority under the ART Act in March and was directed to the National ART and Surrogacy Board. Her formal request was rejected on May 6, leading her to seek judicial relief.
Centre's Stance and Legal Hurdles
In an affidavit filed before the high court, the Union Health Ministry firmly opposed the plea. The Centre's reply stated the petition was "legally untenable" on multiple grounds. Firstly, it emphasized that the son "did not consent to any posthumous use of his semen" and therefore, by law, it cannot be used for fertilization by the petitioner or anyone else.
Secondly, the Centre pointed out legal ineligibility. The 55-year-old mother does not fall under the definitions of an "intending" woman or couple under the Surrogacy (Regulation) Act, 2021, or a "commissioning" party under the ART Act, 2021. It also highlighted that the ART Act strictly prohibits the transfer of gametes except for one's personal use with National Board approval, making the requested transfer illegal.
Court's Interim Protection and Future Hearing
Recognizing the petition's significant questions on preserving gametes after death, the Bombay High Court, in June, issued crucial interim orders. It directed the state health department "to ensure safe-keeping and storage of the frozen semen sample of the deceased" until final orders are passed. The court noted that if the sample were discarded during the case's pendency, the petition's purpose would be defeated.
The court also allowed the mother to amend her plea to challenge the validity of certain provisions of the ART Act. However, due to a paucity of time, the high court has now posted the matter for further hearing in February 2026. This delay extends the anxious wait for a resolution in this ethically complex case that sits at the intersection of reproductive rights, consent, and inheritance.
