3 days ago
On mother's plea, HC says preserve dead youth's semen
Mumbai: Bombay high court has ordered a fertility centre in Mumbai to preserve the frozen semen of a deceased unmarried man (21) pending hearing of a petition by his mother (52) who wants to use it to continue the family line.
The fertility centre had refused to release it to her and asked her to get a court order, reports Rosy Sequeira.
The woman's son who died of cancer had chosen to preserve his semen during treatment for chemotherapy. Justice Manish Pitale on Wed said if the semen sample is destroyed before the matter is decided, the purpose of the petition would be "frustrated."
Taking up the plea of a mother seeking access to her deceased son's semen samples, a Bombay high court judge on Thursday said, "If during the pendency of the petition, the frozen semen of the deceased is discarded, the whole purpose of filing the present petition, would stand frustrated…" He ordered the Mumbai-based Nova IVF Fertility Center "to ensure safe-keeping and storage of frozen semen sample…during the pendency of the present petition.
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The mother's petition said when her son was diagnosed with cancer, the oncologist treating him advised him to freeze his semen as chemotherapy causes fertility problems. Her son, without consulting family members, however, ticked an option to destroy the sample in the event of his death. He passed away on Feb 16 intestate.
On Feb 24 and 26, emails were sent by the woman to the fertility center requesting them not to dispose off the semen sample and to provide access to transfer the sample to a Gujarat-based IVF centre for future course of action.
On Feb 27, Nova declined to release the sample and asked the mother to obtain authorisation from court as per Assisted Reproductive Technology (Regulation) Act and Rules.
On April 1, the Maharashtra public health secretary wrote asking her to approach the national board. On May 6 the Union ministry of health and family welfare rejected her request. Thereafter, the mother moved HC. The sample was meant for storage till July 31.
Her petition, submitted through advocates Nikhilesh Pote and Tanmay Jadhav, said the young man's family comprises only female relatives. His father died at 45 and his uncle at 21. "Now the petitioner has lost S at the age of 21…the petitioner intends to continue the family legacy through the deceased son's semen." It said when her son was critical and realised he didn't have much time, he told his aunt to "do something with the sperm and create his children who would take care of my mom and family.
" Also, it is a settled legal position that "sperm constitutes property and the parents are the legal heirs of the deceased son." It said the form signed by the deceased youth had two columns - to 'perish' the sample or hand it over to the wife (if married). "The deceased son of the petitioner was unmarried, hence he might have chosen the 'perish' option."
Justice Pitale said the petition raises "important questions with regard to the manner in which the semen/gamete of a person are to be preserved" after death.
The central govt's advocate, Yashodeep Deshmukh, referred to Delhi HC's Oct 2024 judgment where a similar prayer by the parents of a deceased unmarried man was allowed. He said, however, in the present case, the deceased had specifically opted for his frozen semen sample to be discarded upon his death.
Justice Pitale noted that Delhi HC had directed the union ministry to consider if whether any law, or guidelines are required to address issues related to posthumous reproduction. Deshmukh will inform whether guidelines are framed on July 30.
