The bloodline and family name are one of the most weighted characteristics of Indian society. The lineage and the continuity of the family name are believed to be decided by the next generation. With the advent of technology, artificial reproductive technologies have been introduced, which may include artificial insemination, in vitro fertilisation, frozen embryo transfer and so on. Freezing of human semen in sperm banks i.e. cryopreservation, is one such means where the frozen sperm is later retracted and fertilisation is artificially facilitated. These sperms can be stored for a very long period of time provided that the requisite conditions are artificially met.
There are several factors that may lead to a human preserving their semen such as an encounter with a disease that may damage fertility or plans to conceive later in life when probably natural conception is not probable, given 1 in every 15 Indian couples struggles with infertility.1 Such processes also concern with human dignity and privacy under Article 21 of the Indian Constitution2. A Forbes article reads that a “will” can be created for posthumous usage of a person’s frozen sperm as it could lead to legal complications otherwise.3 This article provides insight into several complexities revolving around the rights over frozen semen.
Assisted reproductive technology
The Assisted Reproductive Technology (Regulation) Act, 2021 prescribes the age limits for freezing the sperm to be 55 years and 50 years for men and women respectively.4 However, it does not have any specific guidelines regarding the disposal/utilisation of semen samples of an unmarried person. Although the Act says that the banks need consent in writing from the parties involved for preserving the human gamete and embryos in case of death or incapacity of any of the parties.5 This silence of codified policy on an unmarried man brings us to an important question about the legal rights of a deceased man’s sperm sample. Further, it is mentioned that the collection of gametes posthumously can be made only if prior consent of the couple is taken.6 Even though the Act mentions about collection and usage of a deceased person, it is silent on the matter of an unmarried deceased’s sperms and on the rights arising over it.
Again, a question is posed if a conflict arises between the parents and wife of the deceased then who shall be the rightful owner of the frozen sperms? Once this debate is settled then the question regarding inheritance rights, usage and disposal of the sperms be thought upon. In the next section, we shall analyse different court cases and try to draw an inference.
In this section, we shall try and find the inferences to the problems posed above with the decided and ongoing cases. In Parmanand Katara v. Union of India7, the constitutional framework under Article 21, has been extended towards attributing the right to fair treatment and dignity to the dead. The State has an obligation to preserve life under Article 21, and in the instant situation when life can be given to a child from the potential remains of the deceased, the State’s responsibility extends beyond just assisting the living with reproductive technology. Had the person been alive, his right to bear a family would have remained very well secured.
The Calcutta High Court in Vineet Ruia v. Govt. of India8, interpreted the word “dignified procedure of death” to include the disposal of human remains of a deceased in a dignified manner. Appropriate measures have to be taken up facilitating the return of any bodily assets to the next of kin, which includes giving the right to such families for their proper handling and management.9
In Asok Kumar Chatterjee v. Union of India10, the father demanded rights over his son’s preserved semen, the Calcutta High Court observed that a mere father-son relationship does not give any fundamental right to the parent for claiming the deceased son’s semen. Rather, any right over the deceased’s progeny would be with the wife.
The rights of a widow over a dead man’s sperm have been recognised by courts internationally. In the United Kingdom, the court recognised the opportunity of the widow to conceive and have a child after the husband’s death. Reliance was placed on Article 8 of the European Convention on Human Rights11 which concerns the “right to respect for private and family life”.12 Further, the British Columbia Supreme Court in K.L.W. v. Genesis Fertility Centre13 declared that the sperm was the “sole property of the widow” because she was the sole beneficiary of her husband’s estate which includes personal assets. In these cases, although the Court favoured the widow of the deceased, a question regarding the intent of the widow arises if she claims the deceased’s semen. It could give rise to further complications in terms of inheriting the property, carrying the name forward and other rights available under the laws of the country.
Deciding the rightful owner of such claims becomes problematic when the deceased does not have a wife. In a pending petition of Gurvinder Singh v. State (NCT of Delhi)14 before the Delhi High Court, a similar issue has been raised by the parents of the deceased man. The facts of the case are that the petitioner’s late son passed away during the treatment of cancer. During the treatment, the deceased preserved his sperm in the hospital’s IVF lab. With the intent of carrying forward their son’s legacy through surrogacy, the petitioners requested the lab to release the sperm sample to them. However, due to a lack of clear guidelines from the Government, the hospital refused.15 During the proceedings so far, the petitioners urged that the remaining “bodily assets” cannot be withheld by the hospital since they constitute and comprise important personal genetic data.16
This stems from the concern regarding the protection of frozen sperm because these cells carry the ancestral history of the bloodline with them that can be misused. The information obtained from genetic data can be used beyond the healthcare sector. For example, determining the intellect of a particular population, behavioural problems including criminal tendencies, state surveillance, etc. This also helps in the prediction of disease and early inventions, resulting in a profitable business.17 To give an overview of the possible increase in the genomic data market, the global genomics market size was USD 23.11 billion in 2020 and is predicted to reach USD 94.65 billion by 2028.18
Challenges and suggestions
From the previous section, we may infer that the rights regarding the deceased semen rest with the wife as of now. The challenges posed are concerning privacy infringement as genetic lineage of the person can be traced and the information be used or exploited in several expected and unexpected ways. If the jurisprudence is granting the rights over the deceased’s semen to the widow of the person, then sooner or later the live-in partners and divorced wives shall also claim it. This will hamper the mental state of the child born out of such a process. As the progeny of a divorced daughter or daughter-in-law or a live-in partner may or may not get family and societal acceptance. Further, the parents shall also get rights over claiming the frozen semen of the deceased in case, they may want to conserve the family name and lineage.
There are several contenders for the deceased’s semen. Therefore, like financial banks, sperm banks shall also make the depositors fill out a form for the nominee in case the wife is not present due to being a bachelor or the death of the wife. The first right shall rest with the wife but subsequently, parents shall be given preference over the divorced wife and live-in partners. Besides making a nominee, making a will could be another good choice. Canada has Assisted Human Reproductive Regulation with a specific requirement for sperm depositors to sign a written consent to use their eggs or sperm for specific purposes even after death.19 The Transplantation of Human Organs and Tissues Act, 199420 also guarantees the deceased person the right to preserve their organs and tissues from being harvested without their consent. Therefore, parallelism can be drawn from the same.
The need of an airtight legislation is mandatory as its absence poses a twofold problem. Firstly, IVF clinics and hospitals can illegally use semen for commercial surrogacy, mishandling genetic data, etc. Secondly, banks and hospitals cannot treat it as their personal property and a need for proper guidelines are required. The frozen semen’s future use can be determined by the intent of the deceased, and the requirement of enumerating the permission of using them after the death can be made a compulsory part of the procedure with the family witnesses and wife in priority, if present, attesting the same.
† Third year student, BA LLB (Hons.), Rajiv Gandhi National University of Law, Punjab. Author can be reached at firstname.lastname@example.org.
†† Fourth year student, Rajiv Gandhi National University of Law, Punjab.
1. Nikita Bahety, “Rising Cases of Infertility in India – Both Men and Women”, Times of India <https://timesofindia.indiatimes.com/readersblog/mysavvyarticulation/rising-cases-of-infertility-in- india-both-men-and-women-46439/> (last visited on 26-3-2023).
3. Leigh Weingus, “What is Sperm Freezing”, Forbes Health, <https://www.forbes.com/health/family/what-is-sperm-freezing/> (last visited on 26-3-2023).
9. National Human Rights Commission, Advisory for Upholding the Dignity and Protecting the Rights of the Dead (14-5-2021).
11. European Convention on Human Rights, Art. 8.
12. “Widow Wins Legal Fight for IVF with Husband’s Sperm”, BBC <https://www.bbc.com/news/uk-scotland-north-east-orkney-shetland-54294414> (last visited on 26-3-2023).
17. Selita, Fatos, “Genetic Data Misuse: Risk to Fundamental Human Rights in Developed Economies”, (2019) 7 Legal Issues Journal 53-95.
18. Fortune Business Insights, <https://www.fortunebusinessinsights.com/industry-reports/genomics-market-10094> (last visited 26-3-2023).
19. Assisted Human Reproduction Act, 2004, S. 8(1). [Canada].