Bombay High Court orders fertility clinic to preserve deceased man's sperm in landmark ART Act case
In a case that could set a key precedent for posthumous reproductive rights in India, the Bombay High Court has directed the interim preservation of a deceased 21-year-old unmarried man's frozen semen sample. Justice Manish Pitale, presiding over a Single Bench, was hearing a petition filed by the man's mother and noted that the matter raised 'important questions' regarding the interpretation and application of the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act).
The petitioner moved the High Court after the fertility clinic refused to release her son's semen. She is seeking access to the sample to continue the family lineage, arguing that her son was the sole legal heir.
Justice Pitale observed, 'This petition gives rise to important questions with regard to the manner in which the semen/gamete of a person is to be preserved after death, under the Assisted Reproductive Technology (Regulation) Act, 2021 and the Rules framed thereunder. 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.'
The Court said that the petition requires detailed consideration but cautioned that if the semen is discarded during the pendency of the matter, the very purpose of the petition would be defeated.
'In view of the above, list for further consideration on July 30, 2025, High on Board. In the meanwhile, as an interim direction, the respondent No.2 (the clinic) is directed to ensure safe-keeping and storage of the frozen semen sample of the deceased, during the pendency of the present petition.'
According to the mother, her son was diagnosed in 2023 with Ewing Sarcoma, a rare form of cancer affecting bones. Before beginning chemotherapy, his oncologist had advised him to freeze his semen due to the potential impact on fertility. He subsequently deposited his sample at a fertility clinic in Mumbai. The consent form, the mother claims, gave only two options: discard upon death or hand over to a spouse. The son signed it without consulting his family.
As he died unmarried and without a will on February 16, 2025, the clinic refused to release the sample. The mother requested that it be transferred to a Gujarat-based clinic but was informed that a court order was needed.
She first approached the Maharashtra Public Health Department in March but received no response. She then appealed to the Union Ministry of Health and Family Welfare on April 28. On May 6, her grievance was formally rejected, prompting her to approach the High Court.
The petition notes that there are no surviving male members in the family, as the father and uncles had passed away young. It also cites a dying wish conveyed by the son to his aunt — that his sperm be used to create children who could look after his mother and family. The petition asserts that 'the sperm constitutes property' and that 'parents are the legal heirs of their deceased son.'
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