MUMBAI: The Centre recently sought dismissal of a woman’s petition for the transfer of her late son’s sperm sample for IVF use saying he had not consented to its posthumous use.His mother petitioned the Bombay high court earlier this year seeking permission to access and transfer the semen sample preserved in a cryobank. Her son died intestate and single on Feb 16, following a health battle. The central health ministry, in an affidavit filed before the high court seeking dismissal of her petition, said during his medical treatment, he had executed a consent form under the Assisted Reproductive Technology (Regulations) Rules, in which he explicitly chose that his stored semen sample should “perish” in the event of his death.In March, the mother applied to the authority established in Maharashtra under the ART Act for permission to access the sample but was advised to approach the National ART and Surrogacy Board. She did so, and her request was rejected on May 6. Aggrieved, she approached the high court for relief.The high court, in June, observed that the mother raised important questions on how to preserve gametes post the death of a person and that if, during its pendency, the semen sample is discarded, the whole purpose of the petition would stand frustrated. The high court had hence, in interim orders, directed the state health department “to ensure safe-keeping and storage of the frozen semen sample of the deceased” till final orders.The high court said the issue was particularly significant in the present case since the son was unmarried at the time of his death. The high court had also allowed the mother to amend her petition and challenge the validity of certain provisions of the ART Act. The Centre’s reply said the petition filed by the mother was legally untenable.The Centre stated: “There is no provision in the Surrogacy (Regulation) Act, 2021, for the storage and transfer of a preserved semen sample to another clinic. The only provisions dealing with the transfer of gametes are Sections 29 and 30 of the ART Act, 2021. Section 29 expressly prohibits the sale, transfer, or use of any gamete or embryo to any party within or outside India, except that a person may transfer his own gametes for personal use with the permission of the National Board. Section 30 prohibits the transfer of human gametes or embryos outside India for research. Thus, under these provisions, the transfer of a gamete to any party (other than for one’s personal use with Board approval) is strictly forbidden.”Under the law too, the mother, 55, is ineligible, said the Centre’s reply. The Surrogacy Act applies to an ‘intending’ couple or woman, and ART applies to a ‘commissioning couple’ or ‘woman’ seeking ART treatment. The Centre says the case before the high court is distinguishable since the man opted to discard the frozen samples on his demise. The Centre said the son “did not consent to any posthumous use of his semen. Therefore, by law, the semen cannot be used for fertilisation by the petitioner or anyone else”.The high court, on Dec 22, for paucity of time, posted the matter to Feb 2026 for further hearing.
