Delhi high court: ‘Our son died. Now we can use his sperm to have a grandchild’

A few in India have expressed their happiness after receiving a court order to give a medical the frozen spermatozoa sample of their deceased brother so they can have a granddaughter through surrogacy.

Following a four-year legitimate battle, the Delhi High Court issued the monument purchase.

” We were quite unhappy, we lost our child. However, the court has given us a pretty priceless product. We would then be able to get our brother back”, the family, Harbir Kaur, told the BBC.

After Delhi’s Ganga Ram Hospital in December 2020 refused to release their father’s semen, which was kept in their reproduction test, Ms. Kaur and her father Gurvinder Singh filed a court petition.

The child’s 30-year-old child, Preet Inder Singh, had been diagnosed in June 2020 with Non-Hodgkin’s Lymphoma- a form of body malignancy- and admitted to the hospital for care.

The doctor advised him to keep his spermatozoa as the therapy could significantly affect the quality of his sperm before he started chemotherapy, Gurvinder Singh told the BBC.

Preet Inder, who was young, agreed and his example was frozen on 27 June 2020. He died in early September.

A few months afterwards, when the grief-stricken parents sought admittance to their father’s freezing eggs, the hospital declined their demand. The couple therefore filed a petition with Delhi High Court.

The pair, who are in their 60s, told the judge that they would take up any baby born using their brother’s semen test. And their two sons have pledged in judge that they will assume full responsibility for the baby in the event of their passing.

In her attempt last year, Justice Prathiba Singh said that” under American legislation, there was no prohibition against belated reproduction” if the eggs owner had given consent.

She added that parents were entitled to the test because, under the Hindu Succession Act, they became lawful heirs in the presence of a spouse or children.

The pair claim that the judge granted them permission to continue their relationship with him and that the order would enable them to maintain their family name.

He cherished his daughters as well as his friends. He serves as my phone’s screen saver. I start my time by looking at his face every morning”, Ms Kaur said. Due to privacy concerns, she did not want to reveal a picture of him with the BBC.

She added that one of her daughters had consented to be the substitute and that the family was thinking about using his sperm for a baby. ” We will preserve it in the home”, she said.

The situation is unique, but not without precedent, her attorney Suruchii Aggarwal told the BBC.

In court, she cited the 2018 case of a 48-year-old woman in the western Indian city of Pune who got twin grandchildren through surrogacy using the semen of her 27-year-old son who had died of brain cancer in Germany.

Her brother, who was also young, had given permission for his mother and sister to employ his spermatozoa after his death, and the clinic in Germany gave his trial to them.

Ms Aggarwal also gave the example of a case from 2019 where 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 grandchild.

Justice Singh also cited a number of posthumous reproduction cases in her ruling, including one in Israel in which a 19-year-old soldier killed in Gaza had been granted legal permission to use his sperm to give birth to a child through a surrogate mother.

So if there is a precedent, why did the hospital reject the couple’s request?

There is no consensus among experts on the subject, as Justice Singh noted in her ruling.

The US, UK, Japan, Czech Republic and some other countries allow posthumous reproduction with written consent. A one-year wait period after the death is added to the requirement to allow for the healing process.

The practice is prohibited in a number of countries such as Italy, Sweden, Switzerland, France, Malaysia, Pakistan, Hungary and Slovenia, while most of India’s South Asian neighbours- Sri Lanka, Nepal, Bhutan and Bangladesh- have no guidelines.

And even in nations with posthumous reproduction laws, the majority of conceivers want to use frozen sperm or eggs to conceive.

The number of bereaved parents seeking sperm of their sons has risen in Israel, and as the conflict with Russia has escalated, soldiers in Ukraine are offered semen cryopreservation free of charge. But in India, this is still relatively rare.

Ganga Ram Hospital claimed in court that they could only legally release the sample to the spouse. They claimed that there were no clear rules or regulations governing the release of sperm samples from an unmarried male to his parents or legal heirs.

The Indian government also objected to the petition of the couple, claiming that the government’s surrogacy laws were intended to assist infertile couples or women rather than people who wanted to have a grandchild.

The authorities also pointed out that Preet Inder was unmarried – India’s Assisted Reproductive Technology (ART) Act 2021 bars single people from having children via surrogacy – and that he had not left any written or oral consent for the use of his frozen sperm so his parents did not have an automatic right to use it.

Ms Aggarwal, the couple’s lawyer, argued in court that while filling in the form for storing his semen, Preet Inder had clearly specified that it was for the purpose of IVF.

The form, she told the BBC, had the mobile numbers of both father and son, which implied consent. She made the point that the lab had been being paid for the lab’s work keeping the sample.

The ART Act, she said, was introduced to stop commercial use of surrogacy, to regulate and supervise clinics, not to impinge upon personal freedoms of aggrieved parents.

Justice Singh agreed with Ms. Aggarwal’s claim that Preet Inder had consented to the use of his sperm for the development of children.

He did not have a spouse or partner. He intended to use the sample to carry a child. The parents are entitled to the release of the same when he passed away, the parents being the heirs of the deceased, and semen samples being genetic material and constituting property.

The court ruled in those circumstances that it was possible for the couple to not permit them to access their son’s sperm sample.

The court order, Ms Kaur says, has offered her a “glimmer of hope, a light” that” we will be able to bring our son back”.

” I have prayed every day to fulfil all my child’s unfulfilled desires. It’s taken four years, but my prayers have been answered”, she adds.