Bombay HC orders preservation of dead man's semen on mother's plea
MUMBAI: Bombay high court has ordered a fertility centre to preserve the frozen semen of a deceased unmarried man pending hearing of a petition by his mother who wants to use it to continue the family line.
The fertility centre had refused to release it to her.
The woman's son had chosen to preserve his semen during chemotherapy. Justice Manish Pitale said if the semen sample is destroyed before the matter is decided, the purpose of the petition would be "frustrated".
The mother's petition said when her son was diagnosed with cancer, the oncologist treating him had advised him to freeze his semen as chemotherapy caused fertility problems.
Her son, without consulting family members, however, ticked an option to destroy the sample in the event of his death. He passed away on Feb 16 intestate.
On Feb 24 and 26, emails were sent by the woman to Nova IVF Fertility Centre requesting them not to dispose of the semen sample and to provide access to transfer the sample to a Gujarat-based IVF centre for future course of action. On Feb 27, Nova declined to release the sample and asked the mother to obtain authorisation from court as per Assisted Reproductive Technology (Regulation) Act and Rules.
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On April 1, the Maharashtra public health secretary wrote asking her to approach the national board. On May 6, the Union ministry of health and family welfare rejected her request. Thereafter, the mother moved HC. The sample was meant for storage till July 31.
Her petition, submitted through advocates Nikhilesh Pote and Tanmay Jadhav, said the young man's family comprises only female relatives. His father died at 45 and his uncle at 21.
"Now the petitioner has lost S at a young age of 21...the petitioner intends to continue the family legacy through the deceased son's semen."
It said when her son was in a critical state and realised he did not 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". Also, it is a settled legal position that "sperm constitutes property and the parents are the legal heirs of the deceased son."
It said the form signed by the deceased youth had two columns - to 'perish' the sample or hand it over to the wife (if married). "The deceased son of the petitioner was unmarried, hence he might have chosen the 'perish' option." Justice Pitale said 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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