HC allows posthumous reproduction: Semen, ovum are individual’s property

The Delhi high court on Friday ruled that semen or ovum samples constitute “property” or “estate” of an individual, in a ruling with significant implications for reproductive rights and bioethics.
A bench of justice Prathiba M Singh held that under the prevailing Indian law, if the sperm or egg owner’s consent can be demonstrated, there is no prohibition against their release or use for posthumous reproduction. The term “posthumous reproduction” refers to the process of conceiving a child using Assisted Reproductive Technology (ART) after the death of one or both of the genetic parents, often using stored sperm, eggs or embryos, with prior consent from the deceased.
“A sperm sample constitutes as ‘property’ or ‘estate’ of an individual, as it can be used for the purposes of procreation, leading to the birth of a child. It can also be used for the purpose of providing fertility to an infertile person. It can also be donated for the purposes of enabling a woman to conceive,” noted the judgment.
In extending the concept of “property” to reproductive material, the court underscored that semen and ovum samples — like human organs — remain part of an individual’s biological material even after their death, thereby constituting “property” under Indian law.
Justice Singh’s 84-page judgment, which sets a precedent on the issue, underscores the evolving legal framework surrounding human biological material, likening it to other posthumous rights over a person’s estate, such as human corpses or organs. The decision extends the legal recognition of reproductive material as an individual’s property, enabling its use for procreation even after the individual’s death.
The ruling arose from a plea by the parents of a deceased 30-year-old man, who died from cancer, seeking the release of his semen samples stored at Sir Ganga Ram Hospital. The parents expressed their wish to carry forward their son’s legacy by using the preserved semen for procreation.
However, the hospital refused to release the samples without a court order. It also contended that there were no laws including the Assisted Reproductive Technology (Regulation) Act, 2021 governing the release of a frozen sample of an unmarried deceased male to his parents or legal heirs and it could thus not release the sample despite being cryopreserved since June 2020.
The court ultimately ruled in favour of the parents, directing the hospital to release the sample because Indian law does not explicitly prohibit it. In this case, the deceased man had expressly consented to the freezing of his semen for progeny or procreation, which justice Singh deemed sufficient to permit the posthumous use of the samples.
“With no prohibition on posthumous reproduction, and consent having been given by the petitioner’s son prior to his death, the Court is of the opinion that this is a suitable case for the release of the sperm sample to the petitioners,” the court declared.
Another crucial aspect of the ruling was the court’s determination that the release of reproductive materials such as semen or eggs may constitute a “public function”.
The hospital had argued that, as a private institution, it was not a “state” actor under Article 12 of the Constitution, and therefore a writ could not be issued against it. However, justice Singh rejected this argument, stating that control over human reproductive material holds “significant ethical, social, and legal considerations”, which transcend private contractual agreements and directly impact family lineage, reproductive rights, and potential future generations. This element of public law, the court ruled, imposes responsibilities on private hospitals in handling such sensitive matters.
This ruling will likely have far-reaching consequences for ART regulations, especially in the context of the Assisted Reproductive Technology (Regulation) Act, 2021, and could be a benchmark for future discussions surrounding reproductive autonomy and the ethical dimensions of posthumous procreation.