Who should get unmarried man’s semen sample after his death? Delhi HC to examine

In the absence of legal clarity, the Delhi high court has sought responses from the Union and Delhi governments in the matter, after a hospital in the national capital refused to return the frozen semen sample of a deceased cancer patient to his family.

The parents of the deceased had moved the high court in December last year after authorities of Delhi’s Sir Ganga Ram Hospital refused to give them the frozen semen sample of their son, which they may use to continue the family line.

There is no law, policy or legal procedure in our country to decide as to who should be handed over the semen sample of an unmarried deceased man, the hospital told the high court while opposing a plea to handover the sperm samples to the family of a 30-year-old cancer patient who died in September 2020.

The hospital has said that the Assisted Reproductive Technology (ART) Act, ICMR guidelines, Surrogacy Bill/Act are “silent” about the legal heirs of the unmarried deceased man to whom the frozen semen sample is to be released.

The hospital has said that in absence of any guidelines, regulation and direction on this issue of disposal and utilisation of semen samples of an unmarried person, they are unable to make final disposal of the frozen semen sample of the deceased. It sought that the court may pass appropriate orders considering the current scenario.

The samples were frozen after the deceased’s family, during the treatment in June 2020, was informed by the doctors that the chemotherapy may make their son infertile.

In their plea filed through advocate Kuldeep Singh, the parents have said that following the demise of their son, they are the “sole claimants” over his remaining “bodily assets” and as such, the hospital’s action of denying them access to the semen sample is a violation of their rights.

The court issued notice to the Centre, Delhi government and Sir Ganga Ram hospital on the plea and sought to know their stand on December 24.

While raising objections to the plea, the hospital has said that even the recent Gazette of India, Ministry of Law and Justice, in the ART regulation Act, 2021 do not mention about the issue raised in the petition.

“…there are no ART laws or legal procedure in the country to release frozen semen sample of unmarried male to parents/legal heirs…the sample is still kept cryopreserved at the centre of Sir Ganga Ram Hospital and it is not in a position to release the semen sample to the parents in the absence of any guidelines,” said the hospital’s reply filed before justice V Kameswar Rao.

The matter was listed on Friday where the court has asked the petitioners to respond to the reply filed by the hospital.

The hospital in its reply also cited a 2005-order of the Calcutta High Court, where the judge had ruled that only the wife had the right on the husband’s semen sample, noting that the parents in the present case have no right over it.

During the hearing, the counsel for the petitioner parents told the court that he would file a rejoinder on the plea following which the matter is listed for May 13.

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