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The couple say they went to court because they wanted to continue their son's “legacy.”
A couple in India said they were “delighted” after a court ordered a hospital to hand over their deceased son's frozen sperm sample so they could have a grandchild through surrogacy.
The Delhi High Court's historic order came after a four-year legal battle.
“We were unlucky, we lost our son. But the court has given us a very precious gift. We could now have our son back,” the mother, Harbir Kaur, told the BBC.
Ms Kaur and her husband Gurvinder Singh filed a petition with the court after Delhi's Ganga Ram Hospital refused in December 2020 to release their son's sperm which was stored in their fertility laboratory.
The couple's son, Preet Inder Singh, 30, was diagnosed in June 2020 with non-Hodgkin lymphoma – a form of blood cancer – and was admitted to hospital for treatment.
“Before starting chemotherapy, the hospital advised him to conserve his sperm because the treatment could harm the quality of his sperm,” Gurvinder Singh told the BBC.
Preet Inder, who was single, agreed and his sample was frozen on June 27, 2020. He died in early September.
A few months later, when the grief-stricken parents sought access to their son's frozen sperm, the hospital declined their request. The couple then approached the Delhi High Court.
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There is no international consensus on the issue of posthumous reproduction
The couple, aged in their 60s, told the court they would raise any child born from their son's sperm sample. And in the event of death, their two daughters pledged in court to take full responsibility for the child.
In her order last week, Justice Prathiba Singh said that “under Indian law, there was no prohibition on posthumous reproduction” if the owner of the sperm had given consent.
She added that parents were entitled to the sample because in the absence of a spouse or children, they became legal heirs under the Hindu Succession Act.
The couple say they contacted the court because they wanted to continue his “legacy” and the order would help them preserve a connection to him and perpetuate their family name.
“He loved his sisters and was much loved by his friends. This is my phone's screensaver. I start my day by looking at his face every morning,” Ms Kaur said. She did not want to share a photo of him with the BBC for privacy reasons.
She said the family was considering using his sperm as a surrogate and one of her daughters had agreed to be the surrogate. “We’ll keep it in the family,” she said.
The case is rare, but not unprecedented, his lawyer Suruchii Aggarwal told the BBC.
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The court cited a number of cases of posthumous reproduction in its order
In court, she cited the 2018 case of a 48-year-old woman from the western Indian city of Pune who had twin grandchildren through surrogacy using the sperm from her 27-year-old son, who died of brain cancer in Germany.
His son, also single, had allowed his mother and sister to use his sperm after his death and the German hospital had given them his sample.
Aggarwal also gave the example of a 2019 case in which the New York Supreme Court allowed the parents of a 21-year-old military cadet killed in a skiing accident to use his frozen sperm to have a child. -child.
In her order, Judge Singh also cited a number of cases of posthumous reproduction, including a 2002 case in Israel in which the parents of a 19-year-old soldier killed in Gaza obtained legal permission to use their son's sperm to have a child through a surrogate mother.
So if there is precedent, why did the hospital reject the couple's request?
As Justice Singh pointed out in her order, there is no international consensus on the issue.
The United States, United Kingdom, Japan, Czech Republic, and some other countries permit posthumous reproduction with written consent. Australia imposes an additional condition of waiting one year after the death to allow time for emotions to settle.
The practice is banned in a number of countries like Italy, Sweden, Switzerland, France, Malaysia, Pakistan, Hungary and Slovenia, while most of India's South Asian neighbors – Sri Lanka, Nepal, Bhutan and Bangladesh – have no guidelines.
And even in countries with posthumous reproduction laws, the majority of cases involve a spouse who wants to use frozen eggs or sperm to conceive.
The number of bereaved parents seeking their sons' sperm has increased in Israel, and as the conflict with Russia intensifies, Ukrainian soldiers are being offered free sperm cryopreservation. But in India, this remains relatively rare.
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Fertility clinics in Ukraine offer free sperm cryopreservation to soldiers
In court, Ganga Ram Hospital said that legally it could only disclose the sample to the spouse. They said there were no clear laws or guidelines governing the release of sperm samples from a man who died unmarried to his parents or legal heirs.
The Indian government also opposed the couple's petition, saying India's surrogacy laws were aimed at helping infertile couples or women, not people wanting to have a grandchild.
Authorities also stressed that Preet Inder was not married – India's Assisted Reproductive Technology (ART) Act 2021 prohibits single people from having children through surrogacy – and that he had not left any written or oral consent for the use of his frozen sperm so that his parents did not automatically have the right to use it.
Ms Aggarwal, the couple's lawyer, argued in court that in filling out the sperm conservation form, Preet Inder had made it clear that it was for the purpose of IVF.
The form, she told the BBC, contained the mobile phone numbers of both father and son, implying consent. She pointed out that the father had paid the laboratory to keep the sample.
The ART Act, she said, was introduced to end the commercial use of surrogacy, to regulate and supervise clinics, and not to encroach on the personal freedoms of aggrieved parents.
Justice Singh agreed with Ms Aggarwal's argument that Preet Inder had given consent for her sperm to be used for the purpose of having children.
“He was not married and had no partner. He intended for the sample to be used to have a child. Upon death, the parents being the heirs of the deceased and the sperm samples being genetic material and constituting property, the parents are entitled to its restitution.
In these circumstances, the court said it could not deny the couple access to their son's sperm sample.
Kaur said the court order offered her a “ray of hope, a light” that “we can bring our son back.”
“I prayed every day to fulfill all of my child's unfulfilled desires. It took four years, but my prayers were answered,” she adds.
