The Bombay High Court has directed a fertility centre to preserve the frozen semen of a deceased unmarried man, pending the outcome of a petition filed by his mother. She seeks to use the sample to continue the family line, but the fertility centre had earlier refused to release it to her. Justice Manish Pitale noted that if the semen sample is destroyed before the matter is decided, the very purpose of the petition would be “frustrated”.
According to a report by a national daily, the young man had chosen to preserve his semen during chemotherapy after being advised by his oncologist, who had warned him that the treatment could cause fertility issues. However, without consulting his family, he opted in the preservation form to destroy the sample in case of his death. He passed away on February 16 at the age of 21.
After his death, the mother made repeated efforts to retain and transfer the semen. On February 24 and 26, she sent emails to Nova IVF Fertility Centre, requesting them not to dispose of the sample and to allow its transfer to a Gujarat-based IVF centre for further action. But on February 27, Nova declined the request, citing the Assisted Reproductive Technology (Regulation) Act and Rules, and advised her to obtain court authorisation.
On April 1, the Maharashtra public health secretary advised the mother to approach the national board. Later, on May 6, the Union Ministry of Health and Family Welfare rejected her request. Following this, she approached the High Court. The semen sample was originally scheduled to be stored only until July 31.
Her petition, filed through advocates Nikhilesh Pote and Tanmay Jadhav, argued that her late son’s family comprises only female members. His father had died at the age of 45, and his uncle at 21.
The petition also mentioned that when the son was critically ill and sensed 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”. Furthermore, it stated that it is a settled legal position that “sperm constitutes property and the parents are the legal heirs of the deceased son.”
It also pointed out that the form signed by the deceased had two options: to ‘perish’ the sample or hand it over to a wife (if married). “The deceased son of the petitioner was unmarried, hence he might have chosen the ‘perish’ option.” Justice Pitale observed that the petition raises important questions with regard to the manner in which the semen/gamete of a person are to be preserved after death.
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