GURVINDER SINGH AND ANR. vs GOVERNMENT OF NCT OF DELHI AND ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th May, 2024
Pronounced on: 4th October, 2024
+ W.P.(C) 15159/2021
GURVINDER SINGH AND ANR. ….. Petitioners
Through: Ms. Suruchi Aggarwal, Sr. Adv along with Mr. Gurmeet Singh, Adv. (M:9650954007)
versus

GOVERNMENT OF NCT OF DELHI AND ORS. ….. Respondents
Through: Mr. Kirtiman Singh, CGSC with Ms. Vidhi Jain and Mr. Taha Yasin, Advs. for UOI. (M: 9999359235)
Mr. Subhash Kumar & Mr. Anurag Bindal, Advs. for Respondent No.3 (Sir Ganga Ram Hospital). (M:9999955947)
CORAM:
JUSTICE PRATHIBA M. SINGH

JUDGMENT

Prathiba M. Singh, J.
1. This hearing has been held through hybrid mode.
Introduction and Background Facts
2. In M. v. HFEA the Court of Appeal noted the anguish of a woman ‘A’, who was diagnosed with cancer at the age of 21, and wished to conceive children1:
“In other words, the Committee simply did not consider the possibility that this is a case where A said something along these lines (if I may be bold as to attribute words to A that A never used and to which she is not capable of answering): “This is what I want to do. I want to do it whatever you want to tell me about what it involves. I trust my Mum and Dad to make the right decisions about all this when I am gone because they brought me up so well. It is my only chance.” That possibility might explain why there was no detailed discussion involving A and her mother of the details of what would need to happen if A’s eggs were to be used between January 2010 and her death. In fact there was some discussion very shortly before her death, to which the Committee failed to refer. The Committee did not consider whether the inherent probabilities of the case might lead to this sort of conclusion”

3. The sentiments of profound loss and the yearning to preserve a connection with the deceased, as expressed by the mother in the above passage, finds its parallel in the present case. The Petitioners, grieving the untimely demise of their son, seek to continue his legacy by obtaining his preserved semen sample from the Respondent No. 3—Sir Ganga Ram Hospital.
4. The brief background is that the present petition has been filed under Article 226 of the Constitution of India by the Petitioners i.e., Petitioner No. 1-Gurvinder Singh, and Petitioner No. 2-Harbir Kaur, seeking release of their deceased son’s-Late Preet Inder Singh’s frozen semen sample stored in the fertility lab of the Respondent No. 3-Sir Ganga Ram Hospital.
5. The Petitioners’ son was diagnosed with Non-Hodgkin’s Lymphoma on 22nd June, 2020, which is a form of cancer and was admitted in the Ganga Ram Hospital (hereinafter, ‘Hospital’). He was to be administered chemotherapy and at that stage, he was advised for storage of his semen in order to deal with any infertility issues that may occur due to chemotherapy. The deceased had then given consent for freezing of his semen sample, and his semen sample was preserved in IVF lab of the Respondent No.3 on 27th June, 2020 vide registration no. 2726372. Unfortunately, he passed away at the age of 30 years on 1st September, 2020. As per the Petitioners, the advice of doctors was that chemotherapy could result in infertility, which led to this step being taken by the deceased son. The frozen semen sample has been preserved at the Hospital as has been confirmed by Mr. Subhash Kumar, ld. Counsel for the Ganga Ram Hospital.
6. The Petitioners are the parents of the deceased. Petitioner No. 1 is the father, and Petitioner No. 2 is the mother of the deceased. The Petitioners’ son passed away at a young age of 30 years on 1st September, 2020. Prior to his death, when he was diagnosed with Non-Hodgkin’s Lymphoma, which is a form of cancer. In June, 2020, upon the advice of doctors, he is stated to have availed of the services of the fertility lab for semen cryopreservation at the Hospital for storing his semen sample. They approached the Hospital on 21st December, 2020, for release of the frozen sperm stored in the fertility lab of the Hospital. The case of the Petitioners is that they wish to carry on the legacy of their deceased son, and hence they approached the Hospital for release of the semen sample. The Hospital however took the position that the same could not be released without appropriate orders from the Court. The relief prayed for in this writ petition is as under:
“Issue a Writ in the nature of Mandamus or such appropriate Writ, upon the Respondent No.2 for issuance of appropriate directions upon the Respondent No.3 for releasing the frozen Semen Sample bearing Regno.2726372 dated 27.06.2020 stored in the IVF lab of Respondent No.3 into the custody of the Petitioners”

7. The Petitioners state that they had been regularly paying for the preservation of their deceased son’s semen sample. However, after the payment period expired on 27th June, 2020, the Hospital refused to accept further payments. The Petitioners feared that the Hospital may stop preserving the frozen semen due to non-payment. As per the Petitioners, they along with their daughters, are prepared to take full responsibility for any child born via surrogacy using the frozen semen sample.
Procedural History
8. Notice in the present petition was issued on 24th December, 2021. On 4th February, 2022, statement was made by the ld. Counsel for the Hospital that the semen sample had been preserved. The said statement was taken on record.
9. On 13th May, 2022, ld. Counsel for the Hospital stated that one of the reasons the semen sample of the deceased was not released was that no codified policy had been formulated by the Hospital to deal with the present situation. A competent officer from the Hospital was then directed to place an affidavit explaining the Hospital’s position in respect of the prayers made in the present petition. From the affidavit tendered to the Court on 30th May, 2022, it was pointed out that the deceased had submitted a request for Semen cryopreservation before the start of his chemotherapy sessions from 27th June 2020. It was, however, submitted that in terms of the Assisted Reproductive Technology (Regulation) Act 2021, no statutory guidelines were placed in respect of disposal/utilization of semen samples of unmarried person.
10. Considering the important questions raised in respect of the interpretation of the Assisted Reproductive Technology (Regulation) Act 2021 (hereinafter, ‘ART Act’), the Court on 23rd November, 2022, directed the impleadment of the Ministry in the present petition. Thus, the Ministry of Health and Family Welfare (hereinafter, ‘MoHFW’) was impleaded as Respondent No. 4 in the present petition.
11. Vide order dated 12th April, 2023, Mr. Subhash Kumar, ld. Counsel appearing for the Hospital was directed to produce the relevant hospital records relating to the taking of semen sample of the deceased, notings made by the doctors, if any, and the manner in which the same was preserved by the Hospital. The record of the Hospital, including one sheet relating to semen freezing requisition was produced on 2nd May, 2023.
Counter-affidavit on behalf of the Hospital
12. On 3rd February, 2022, the Hospital filed its counter-affidavit. The said counter-affidavit challenged the maintainability of the present petition, on the ground that the said Hospital was not ‘State’ in terms of Article 12 of the Constitution of India.
13. Further, according to the Hospital, there were no laws, including the ART Act, that governed the release of a frozen semen sample of an unmarried deceased male to his parents or legal heirs. Without any guidelines or regulations, the Hospital was unable to release the semen sample despite it being cryopreserved since June, 2020. Additionally, the judgment of the High Court of Calcutta in the case of Asok Kumar Chatterjee vs. Union of India2 held that the father-son relationship did not grant the father any right over the progeny of his son. In this context, the Petitioners (parents of the deceased) had no legal standing or right to the frozen semen sample of their unmarried deceased son. According to the Hospital, the judgment emphasizes that such a right would only belong to the wife, if any.
Rejoinder on behalf of the Petitioners
14. Rejoinder affidavit to the above counter-affidavit was filed on 12th March, 2021. The Petitioners placed reliance on the decision of this Court in Sanjeev Gulati v. Sri Ganga Ram Hospital3, to argue that even private hospitals performing public duties fall under Article 12 of the Constitution of India, and are subject to writ petitions. It was argued that since the Hospital was performing a public function, it could not escape its responsibilities by claiming that the present writ was not maintainable. Reliance was placed on Jasmine Ebenzer Arthur v. HDFC Ergo General Insurance Company Ltd.4 wherein it was held that writ petitions were maintainable against a private body, if a public duty was imposed on it.
15. According to the Petitioners, in the absence of any legislative guidance, the frozen semen sample should be provided to the Class I legal heirs of the deceased, and there was no legal embargo against the Petitioners claiming the genetic material of their deceased son. Furthermore, the Petitioners seek to distinguish the decision in Asok Kumar Chatterjee (supra) on the ground that the said decision differs from the facts of the present case, as therein the deceased was married and had a wife, while in the present case, the deceased was unmarried.
16. Further, the Petitioners placed reliance on the judgment passed by the Supreme Court of the State of New York, County of Westchester, in ‘In the Matter of the Application of Monica Zhu & Yongmin Zhu’ (dated 16th May, 2019, Index No. 53327/2019). The said decision would be considered later in detail.
17. Thereafter, vide CM 44521/2022 dated 10th October, 2022, certain documents such as the ART Act, Surrogacy (Regulation) Act, 2021, Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India were placed on record. Further, certain newspaper articles relating to passing of possession and custody of frozen semen of the deceased son were also placed on record.
Response on behalf of the MoHFW to the present petition
18. MoHFW filed its short affidavit on 3rd February, 2023. In the said affidavit, the stand of the MoHFW is as under:
* The SRA applies only to intending couples or women with medical needs for surrogacy and does not cover grandparents as ‘intending grandparents’, which disqualifies the Petitioners from seeking relief under this Act.
* The ART Act is to assist infertile couples or women and does not extend to cases like the Petitioners’, who wish to have a grandchild through surrogacy.
* The Petitioners lack the necessary documentation, specifically Forms 10 and 11 as required by the ART Rules, 2022, making their request for the release of the semen sample impermissible.
Submissions on behalf of the Petitioners
19. Ld. Senior Counsel Ms. Suruchi Aggarwal, appearing for the Petitioners, relies upon the provisions of the ART Act and the ART Rules, 2022. She specifically refers to Form 10 of the ART Rules, 2022, which, after the ART Act came into force, permits the donor to sign a consent form for freezing, as well as for handing over the said sample to his wife or to any other individual whose name and details can be specified. It is her submission that, although at the time of the Petitioners’ son’s death, this Act had not come into force, and the question of signing the declaration did not arise, the form indicates the intent of the legislation, and the benefit under the Act should not be limited to married individuals.
20. Ld. counsel further relies upon the preamble of the ART Act to argue that the same contemplates use due to infertility, disease or social or medical concerns, which would include the circumstances in which the Petitioners have been placed today. She further submits that the purpose of the ART Act and SRA need to be highlighted inasmuch as the same were only meant for stopping/regulating any commercial use of genetic material. In the present case, the Petitioners are the real parents of their predeceased son, and in terms of Section 2(1)(h) and Section 2(1)(u) of the ART Act, there was no bar on the Petitioners receiving the same.
21. Reliance is further placed upon the decision of the Supreme Court of New York in Monica Zhu (supra), where the Supreme Court of New York was dealing with a similar situation, where the son of the couple, i.e., Peter Zhu was predeceased. The son’s genetic material was permitted to be handed over by the Court in the said case to the parents, subject to various safeguards.
Submissions on behalf of the Union of India
22. Mr. Kirtiman Singh, ld. CGSC, firstly, places reliance on the two Acts i.e., ART Act and the SRA.  He refers to the following provisions of ART Act:
* Section 2(1)(g) defining ‘gamate’,
* Section 2(1)(h) defining ‘gamete donor’,
* Section 2(1)(j) defining ‘infertility’,
* Section 2(1)(u) defining ‘woman’
* Section 21(1)(g),
* and Section 29 which restricts the sale transfer etc of gametes.
23. He further refers to the following provisions of SRA:
* Section 2(1)(h) defining couple, which prescribed the age as being a man of more than 21 years of age and a woman of 18 years of age,
* Section 2(1)(r) defining ‘intending couple’,
* Section 2(1)(zd) defining ‘surrogacy’,
* Section 4(ii) and especially Section 4(ii)(c) which prescribes conditions for surrogacy.
24. As per his submission, on a joint reading of both the enactments, it can be seen that the Petitioners herein would not qualify for either of the benefits under the ART Act or under the SRA, as they have crossed the age limit.
25. In addition, they would also not constitute a ‘intending couple’ under the SRA.  Ld. CGSC tries to draw a parallel from the Adoption Regulations, 2022 of the Central Adoption Resource Authority, which prescribed the maximum composite age of prospective adoptive parent as a couple in order to argue that if the Petitioners cannot even adopt a child, then in law they cannot be permitted to use their son’s semen for the continuation of their son’s legacy. Reliance is placed upon paragraph 9 of the writ petition and paragraphs B and E of the grounds of the petition to argue that clearly, the purpose for seeking release of the semen sample is for utilization for future surrogacy. Since the SRA does not permit the Petitioners for the same, the present writ petition would not be liable to be entertained.  Reliance is also placed upon the following judgments:
* Nandini K v. Union of India5
* Stuti Rakesh Painter v. State of Gujarat6
* Rakhi Bose v. Union of India7
* Arun Muthuvel v. Union of India8
Rejoinder Submissions on behalf of the Petitioners
26. Ms. Aggarwal, ld. Senior Counsel, in response to the submission of ld. CGSC regarding the age of the parents, submits that the Petitioners would obviously not be the commissioning couple. If the genetic material is released to the Petitioners, they would avail of surrogacy only in accordance with law. The Petitioners undertake before this Court that they would not violate any provisions of law, if the material is released to them and if they choose to have a child through surrogacy. The question of whether the Petitioners wish to avail surrogacy or not would be considered after the release has taken place, although she does not dispute that the purpose is to continue the legacy of their son.
27. Reliance is placed upon Rakhi Bose (supra) to argue that in paragraph 7 of the said judgment, the Court recognizes that the power to transfer exists. This observation is relied upon to argue that the potential of a child to be born cannot be stultified by relying on the provisions of the ART Act which have no application in the present case. She highlights the reliefs that have been sought in the present petition i.e., for release of the frozen semen sample which is stored in IVF Lab of the Hospital.
28. At the time when the Petitioners’ son was admitted, the semen sample was given prior to commencement of chemotherapy and as per Petitioners’ information, no consent was obtained as to the use of the same. In conclusion, she relies upon the judgment New York Supreme Court in Monica Zhu (supra), where under similar circumstances, the material was released to the parents.
29. It is submitted that if posthumous surrogacy is not barred under any law, the same ought not to be prevented by the Court. The Petitioners also have two daughters and their families, who are willing to give their undertaking that if surrogacy is opted for, they would also take care of the child.
30. On the issue of the application of the said two Acts, i.e., ART Act and the SRA, it is argued that in the present case, the death of the son took place in 2020 and the application for release of the semen sample was also filed in 2020. However, both the statutes cited came into operation only in 2022, and hence the provisions of the said statutes cannot be relied upon to decide the present petition.
31. She relies on Section 22(2) of the ART Act to argue that the death of the person whose semen sample has been stored is accounted for in the provision itself, indicating that there is no bar or prohibition on the release of the semen sample or gametes. The parents may be required to apply to the surrogacy board to obtain approvals, but the release cannot be prevented. Lastly, she refers to the form filled out by the deceased son at the time the decision to store the semen sample was made in the Hospital, wherein it was clearly specified that the purpose was for IVF. Both his and his father’s mobile numbers were mentioned, which shows that the son intended to preserve his semen sample for procreation. Ultimately, it reflects the will of the deceased.
32.       On the issue of whether semen sample constituted ‘property’, which can be passed on to the parents, ld. Sr. Counsel for the Petitioners places reliance on the judgment passed by the Supreme Court of British Columbia in K.L.W. v. Genesis Fertility Centre9, wherein issues framed for adjudication before the Court were as under:
“ [7] This application raises the following issues:
(a) Is the Reproductive Material property?
(b) If so, did property in the Reproductive Material pass to the petitioner as the sole beneficiary of [A.B.]’s intestate estate?
(c) In the circumstances of this case, may the Court order the release of the Reproductive Material to the petitioner, notwithstanding the lack of the donor’s written consent to the petitioner’s use of the Reproductive Material for the purpose of creating an embryo?”

33.       The above decision considered various other decisions from different jurisdictions, wherein the first question was whether reproductive material could be held to be property.  In the above decision, after considering the decisions in Yearworth v. North Bristol NHS Trust10, Doodeward v. Spence11, Kate Jane Bazley v. Wesley Monash IVF Pty. Ltd.12, and Jocelyn Edwards; Re the Estate of the late Mark Edwards13, the Supreme Court of British Columbia came to the conclusion that the deceased person’s reproductive material has to be construed as property.
34. In the case of K.L.W. v. Genesis Fertility Centre (supra), three issues arose. The first was whether semen constitutes property, and this was affirmed in paragraph 95 of the decision. The second issue was whether property passes intestate to the parents. The Supreme Court of British Columbia held that the wife was the sole beneficiary of the deceased’s intestate estate. The third issue concerned whether semen should be released and whether written consent was required. The Court analyzed various case laws from different jurisdictions, including Elizabeth Warren v. Care Fertility (supra), which held that no consent was required. The Court also discussed cases where the husband’s wishes were recorded, even partially, including decisions from the United Kingdom, where consent can be vague. Finally, in paragraph 134 of the decision, the Court held that not allowing the Petitioner to use the reproductive material of the deceased would be an affront to her dignity. The Court declared the reproductive material to be the sole property of the Petitioner, to be released for the purpose of creating embryos for her reproductive use, while prohibiting any commercial use.

35. In Hecht v. Superior Court14, two issues were discussed by the Court of Appeal of California, Second Appellate District, Division Seven.  One issue was whether there was ownership, which was answered in the affirmative and second issue was whether a moralistic approach is to be adopted or not.  On the second issue, the Court held that the argument that the State would in effect to be allowing orphan children to be born is a value judgment which the Court cannot take inasmuch as the State cannot interfere in the decision of parties.  In this case, the semen sample of the deceased had been stored and the claimant was his girlfriend, and two other children from a previous marriage were objecting to the release of the semen sample.
36. In Roblin v. The Public Trustee for the Australian Capital Territory15 , the question before the Supreme Court of the Australian Capital Territory was whether semen would form part of the estate of the deceased, which was answered in the affirmative, and the ova & sperm were held to be human tissues. The Court directed that the same would be property, and the ownership, which was originally with the deceased person, upon death would flow to the legal representatives and form part of the estate.
37. In Re Application by VERNON16, the Supreme Court of New South Wales dealt with the posthumous retrieval of reproductive material. The Court held that reproductive material may be retrieved even after death. It also established a hierarchy of legal representatives, where the spouse is ranked first, children second, and the parents of the deceased third. The Court further recognized that the transplantation of reproductive material could be used either in the body of a living person or for research, development, and therapeutic purposes, but for no other purposes. Additionally, the Court held that once semen is removed from the body of a person awaiting burial, it constitutes property.
38. Ms. Aggarwal, ld. Sr. Counsel distinguished the decisions cited by the Respondent.
(i) In respect of Nandini K. (supra), she submits that the position of the Kerala High Court recognises that the right to procreate is part of Article 21 of the Constitution, and refers to the decision to say that prior to the enactment of the ART, 2021 any process that has already been commenced cannot be prevented. 
(ii) Secondly, in Stuti Rakesh Painter (supra), the deceased person’s semen could be used for the purposes of undertaking IVF/ART procedures by the spouse of the deceased and the Court would not injunct the same. 
(iii) In Rakhi Bose (supra) as well, the Kerala High Court has again recognised that there is prohibition against sale, transfer and use of gametes, and the purpose of the said Act is to regulate and supervise Assisted Reproductive Technology clinics. The same is not meant to impinge upon personal freedoms of individuals.
39. Finally, she relies upon the decision in Saswati Mohury v. Union of India17 to argue that there are various gaps in ART Act, which are recognised in paragraph 13 of this decision. One of the gaps includes the fact that age limit is not matching — in the sense that an anomalous situation might arise where one of the individuals of the commissioning couple may be within the permissible age-limit but would nonetheless not be entitled to ART, if his/her partner crosses the age-limit. Finally, reliance is placed upon Suchita Srivastava v. Chandigarh Administration18 to argue that the reproductive choice of a person is a part of right under Article 21 of the Constitution.
40. Ld. Sr. Counsel also highlights the case of Ms. Rajashree Patil where the mother was impregnated with the son’s semen who has passed away due to cancer in Germany and she had given birth to two twins19. The said news article is reproduced below:
“In ? heart-touching story, Rajashree Patil has been blessed with twins from ? surrogate mother in Pune after her 27-year-old son, Prathamesh died of brain cancer two years back. Rajashree, instead of mourning of her son ‘s death used cryopreserved sperms for ? surrogate pregnancy. The twins were born on February 12. They were named as Prathmesh and Preesha (God’s gift).
Rajashree, who is 48-years-old, said that she was very attached to her son who excelled in academics and was pursuing engineering in Germany when he was diagnosed with ? stage IV cancer in the brain. She added that the doctors had asked her son to preserve his sperm before starting the chemotherapy and radiation. Prathamesh, who was unmarried, had authorized his mother and sister, to use his semen sample after his death.
Rajashree rebuked anyone who referred to her as the grandmother saying that she is their mother. Rajashree is ? teacher at ? private school in Mukundnagar. The cryopreserved sperm was used to fertilize ? surrogate who was not from the family.
After his graduation from Sihbad College of Engineering, the 27-year-old had moved to Germany in 2010 to pursue his Master’s. Back in 2013, he was diagnosed with brain tumor and lost his vision. Prathamesh died of cancer ?n September 3, 2016. Rajashree said that Prathamesh’s sister had stopped talking while she herself walked around the house with her son’ s photo. It is then that it occured to her that she could bring him back with some part of him which is still ‘alive’.
Rajashree had completed all the formalities at the semen bank in Germany and approached Sahyadri Hospitals for an IVF procedure. IVF specialist Dr Supriya Puranik at the hospital said that the IVF procedure was quite common but the case was unique as ? grief-stricken mother wanted her son back.”

Further submissions on behalf of the Union of India
41. Mr. Kirtiman Singh, ld. CGSC reiterated his submission that the entire purpose of seeking the release of the semen sample of the deceased son is for the purposes of procreation through surrogacy. The mother and father of the deceased are 66 and 61 years old, respectively. Under such circumstances, surrogacy would not be possible in terms of the provisions of the SRA.
42. In relation to the judgment in Monica Zhu (supra), ld. CGSC relies upon various decisions in order to highlight the fact that posthumous conception has not been recognised in any jurisdiction. What the Petitioners seek in the present case would be a posthumous right to procreation after the death of her son, which is not recognised, although the right to procreation is clearly recognised by various judicial decisions.
43. The grounds on which the Petitioners seek the release of the semen sample are as follows;
i) one, as the property of the son
ii) secondly, as recognition of the right to posthumous reproduction.
According to the ld. CGSC, both grounds are unavailable under the prevalent law. The claim to property in genetic material, according to Mr Singh, ld. CGSC cannot be treated as ordinary succession.
44. Finally, reliance is placed upon a recent decision of the Karnataka High Court in Sri H. Siddaraju & Anr. v. Union of India20 where various tests have been laid down by the Court in order to relax the upper age bar under the SRA. In the said decision, the Karnataka High Court allowed surrogacy, however, after satisfaction of the three tests which were genetic, physical and economic test.  In this case, the female was within the age limit and the husband is one year over age. The said tests are pressed into service to argue that none of these tests would also be satisfied in the facts of the present case.
45. In response, Ms. Aggarwal, ld. Sr. Counsel submits that in the said decision, the Court clearly recognises that it is beyond the realm of the Court, in any manner, to inhibit the use of reproductive technology. In that case, directions to destroy the semen sample had been set aside.
Written Submissions on behalf of the Union of India
46. Three compilations were placed on record by the Union of India/MoHFW on 24th May, 2023, 24th July, 2023 and 6th September, 2023. In addition to the above material, additional material was relied upon, which is provided below:
Statutes and Legislations
* German Embryo Protection Act s 1, ss 1 EschG, 31-40.
* French Loi n° 2011-814, 41-46.
* Swiss Federal Act on Medically Assisted Reproduction, 1988
* Uruguay Regulation on Techniques for Human Assisted Reproduction
* Australian Assisted Reproductive Treatment Act 2008
* European Parliament and Council, DIRECTIVE 2004/23/EC dated 31st March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells
* European Commission, DIRECTIVE 2006/17/EC dated 8th February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells
Case Laws
Indian Decisions
* Nandini K v. Union of India, High Court of Kerala, Judgment dated 19 December 2022, 1-26, paras 10-11, 13-14.
* Stuti Rakesh Painter v. State of Gujarat, High Court of Gujarat, Judgment/Order dated 29 July 2021, 27-30, paras 4-5.
* Rakhi Bose v. Union of India, High Court of Kerala, Judgment/Order dated 21 June 2022, 31-42, paras 6-7.
* Arun Muthuvel v. Union of India & Ors, Supreme Court Order dated 7 February 2023, Writ Petition No 756/2022, 43-44.
* Sri H Siddaraju & Anr v. Union of India21
Foreign Decisions
* Louisville & Nashville Railroad v. Wilson22
* Williams v. Williams23
* Doodeward v. Spence24
* Yearworth v. North Bristol NHS Trust25
* Davis v. Davis26
* Hecht v. Superior Court27
* JCM v. ANA28
* SH v. DH29
* Ex Parte C30
* Robertson v. Saadat et al, Court of Appeal of the State of California, Second Appellate District, Division One31,

Articles/Papers and Reports
* Antony Moses and Palada Dharma Teja, ‘The Grave Issue of Privacy of the Deceased’ (2018) 5(1) IJLPP 1, 1-17
* Robert PS Jansen, ‘Sperm and Ova as Property’ (1985) 11(3) Journal of Medical Ethics 123-16
* Iryna Chekovska et al, ‘Postmortal and Posthumous Reproduction: Ethical and Legal Approaches to the Problem’ (2021) 1 Journal of Legal Ethical & Regulatory Issues 1, 1-8
* Hashiloni-Dolev Y and Schicktanz S, ‘A Cross-Cultural Analysis of Posthumous Reproduction: The Significance of Gender and Margins of Life Perspectives’ (2017) Reproductive Biomedicine and Society Online 4:21-32, 9-30
* Asitik Sikary and Rajeshv Bardale, ‘Postmortem Sperm Retrieval in the Context of Developing Countries of the Indian Subcontinent’ (2016) 9 Journal of Human Reproductive Sciences 82, 47-50
* Pennings G, ‘Belgian law on medically assisted reproduction and the disposition of supernumerary embryos and gametes’ European Journal of Health Law 81-160
* ESHRE Task Force, ‘Ethics and Law 11: Posthumous Assisted Reproduction’ (2020) 388-391.
* Posthumous Collection and Use of Reproductive Tissue: A Committee Opinion (2020) 328-331.
International Legal Materials
* WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation, 332-340.
47. The additional grounds raised by the Union of India in their written submissions32 are as follows:
* Petitioners’ reliance on the Monica Zhu (supra) judgment by the Supreme Court of the State of New York is misplaced. The Court of Appeal of California, in Robertson v. Saadat (supra), dismissed a similar appeal and disagreed with Monica Zhu (supra). The Californian Court held that neither the State’s intestacy law nor the Uniform Anatomical Gift Act applied to a spouse’s use of reproductive material for posthumous conception. The Court also ruled that signing an organ donor card or expressing a desire to have children did not indicate consent for the use of one’s reproductive material for posthumous conception.
* Posthumous reproduction rights involve complex ethical, legal, moral, religious, and cultural questions, and that answers to these issues vary across jurisdictions. The Respondent argues that such questions should be addressed in specific cases rather than hypothetical scenarios
* Following the unfortunate death of the Petitioners’ son on 1st September, 2020, the present writ petition was filed on 23rd December, 2021 seeking the release of his frozen semen samples for surrogacy through a recognized Hospital. However, the ART Act and the SRA, were enacted by Parliament on 18th December, 2021 and 25th December, 2021 respectively, with the latter coming into force on 25th January, 2022. Petitioners are not entitled to surrogacy under these enactments, and the fact that the semen sample was collected before their enactment does not exempt the Petitioners from compliance with these two Acts. All individuals seeking the benefits of assisted reproductive technology, including surrogacy, ought to follow the said two enactments.
48. In relation to posthumous reproduction, the Union of India, has in its written submissions dated 24th July, 2023, has argued inter alia as follows:
* Posthumous Reproduction or ‘PR’ refers to the process of conceiving a child using Assisted Reproductive Technology (‘ART’) after the death of one or both genetic parents. This involves techniques such as Stimulated Ejaculation, Micro Epididymal Sperm Aspiration (‘MESA’), or Testicular Sperm Extraction (‘TSA’), using either preserved or newly collected sperm or eggs from a deceased or brain-dead individual.
* Broadly, PR can be divided into four categories: Planned PR33, Unplanned PR34, Brain-Dead PR35, and Stem Cell PR36. In the context of the present petition, Planned PR is the focus, wherein explicit consent for the use of stored gametes for reproduction is a quintessential requirement. The present case does not meet this requirement, as there is no explicit consent for the use of the deceased’s frozen sperm for posthumous reproduction. This is a fundamental condition in jurisdictions where PR is permitted, alongside other mandatory requirements.
* PR is a controversial issue with different legal approaches worldwide. According to the Union of India, the most important requirement across jurisdictions permitting PR is explicit consent from the deceased, often in written form. Countries like Germany, France, Pakistan, and Switzerland prohibit PR, either outrightly or due to cultural or religious considerations. However, countries like Uruguay, Belgium, Australia (Victoria), Canada, and the United Kingdom allow PR under strict conditions, primarily depending on the deceased providing clear, written consent for the use of their gametes after death. Additionally, in many jurisdictions, other factors such as the approval of regulatory bodies and consideration of the potential child’s well-being are taken into account before proceeding with PR.
* The Respondents argue that the Petitioners’ request for the release of the sample for PR does not meet the requirements for posthumous reproduction. According to the Union of India, the deceased did not provide any written or oral consent for the use of his frozen sperm for PR, which is an important requirement in countries where PR is permitted. Secondly, the deceased was unmarried, and many jurisdictions only allow PR for married couples. Without consent, the Petitioners’ case does not meet the conditions for PR in any of the jurisdictions. Deceased’s parents have no automatic right to the use of gametes for reproduction. Further, it is submitted that although international law recognizes reproductive rights as human rights, none of the jurisdiction across the world recognize that such a right enables PR.
49. In relation to the treatment of semen as property, the stand of the Union of India is that traditionally, human body parts, including sperm, were not considered property under the ‘no-property’ rule established in England, where such materials were treated as res nullius. Courts, including the Supreme Court of Georgia in Louisville & Nashville Railroad (supra), stressed on the ethical and sentimental value of human remains, distinguishing them from ordinary property. However, over time, legal perspective has changed. Cases like Doodeward v. Spence (supra) marked a significant shift, recognizing that body parts, once removed, could be subject to property rights. The concept laid down in that case was further expanded in Yearworth (supra), where the UK Court of Appeal held that sperm constituted property owned by the men who provided it, even after it left their bodies. Subsequent rulings have increasingly treated sperm and other reproductive materials as property.
Written Submissions on behalf of the Petitioners
50. The Petitioners have placed on record their written submissions dated 11th September, 2023. In addition to the above material, additional material was relied upon, provided below:
Case Laws
Indian Decisions
* M/s. Shanti Conductors v. Assam State Electricity Board (2016) (15 SCC 13)
* Sri H. Siddaraju (supra)
Foreign Decisions
* Elizabeth Warren v. Care Fertility (Northampton) Limited37
* M v. HFEA38
* SB v The University of Atherlinn39
* Jennings v. Human Fertilisation and Embryology Authority40
* Yearworth (supra)
* K.L.W. v Genesis Fertility Centre (supra)
* Hecht v. Superior Court (supra)
* Re Zuch, Supreme Court of New York, Westchester County41
* Re HAE42
* Re HAE AO43
* Roblin v. The Public Trustee for the Australian Capital Territory & Anor44
* In Noone v. Ginea Ltd.45
* Application by Vernon46
* Re Estate of Edwards47
* Chapman v. South Eastern Sydney Local Health District48
* Bazley v Wesley Monash IVF Pty Ltd49
* Re Cresswell50
Articles/Papers and Reports
* Nofar Yakovi Gan-Or, ‘Becoming Posterity: The Right to Posthumous Grandparenthood and the Problem for Law’ (2019) Columbia Journal of Gender and Law 1.
51. In their written submissions, the Petitioners submitted that the present writ was filed on 21st December, 2021, prior to the ART Act coming into force. Placing reliance on Shanti Conductor (P) Ltd (supra), it is argued that the ART Act, applies prospectively, unless explicitly stated otherwise. Therefore, the ART Act does not apply to these facts of the present petition, where the deceased’s semen sample was frozen on 27th June 2020, and the request for its release was made on 21st December, 2020.
52. Further, the concept of Postmortem Grandparenthood (hereinafter, ‘PMG’) as an emerging phenomenon is discussed within the broader practice of Posthumous Reproduction (hereinafter, ‘PMR’), where the gametes of a deceased person are used for reproduction. In PMG, bereaved parents use their deceased child’s semen sample to create a genetically related grandchild, fulfilling the desire for continuity and maintaining a bond with the deceased. According to the Petitioners, this is often viewed as a commemorative act, fulfilling the deceased’s perceived wish to father a child. Parents pursuing PMG believe they have the authority to act on their knowledge of their child’s reproductive preferences. Several instances are relied upon to show the prevalence of the practice of PMG and PMR51.
53. On the aspect of consent, the Petitioners stated that in several jurisdictions however, the Courts have held in favour of posthumous reproduction on the basis of implied or inferred consent or due to lack of opportunity to the decedent to offer explicit consent. By placing reliance on the above cases cited above, it is argued that various UK cases have granted posthumous usage of gametes for reproduction with ambiguous or no written consent.
MAINTABILITY OF THE PRESENT WRIT

54. The Hospital has challenged the maintainability of the present writ petition on the ground the Hospital is not ‘State’, within the meaning of Article 12 of the Constitution of India, and thus, a writ of mandamus cannot be issued against it. The Petitioners, place reliance on Sanjeev Gulati (supra), to argue that even private hospitals performing public duties fall under Article 12 of the Constitution of India, and are subject to writ jurisdiction. It was argued that since the Hospital was performing a public function, it could not escape its responsibilities by claiming that the present writ was not maintainable.
55. The decision of this Court in Sanjeev Gulati (supra) requires consideration. The facts of the said case were that two Petitioners, both employees of Sir Gangaram Trust Society, approached this Court, alleging violations of natural justice. The first Petitioner, facing charges of misconduct, contested the Hospital’s inquiry process, claiming it was conducted unfairly without legal representation. The second Petitioner, terminated from service after eight years, challenged the termination as arbitrary, without inquiry or a hearing, and motivated by malice. In relation to Article 12 of the Constitution of India, a ld. Single Judge of this Court observed that such an institution must perform a function which is public in character — such an action need not necessarily be spelt out in law; the obligation should be apparent from its very nature. The words ‘any person or authority’ used in Article 226 of the Constitution of India are not restricted to statutory authorities and instrumentalities of the State; it includes any person/body performing ‘public duty’. The nomenclature of the institution is irrelevant; of relevance is the nature of the duty imposed on the body. The duty is vis-a-vis positive obligation owed by the concerned person or authority to the affected party, irrespective of the means by which such a duty is imposed.
56. The ld. Single Judge of this Court held that the writ was not maintainable, as the issue raised in the writ petition concerned a private law element, i.e., an employment dispute arising out of a contract, which did not involve any public function. Thus, the writ was dismissed. The relevant portion of the said decision is as follows:
“12. Further debate on the issue would not be necessary, in view of the judgment of the Division Bench of this court, reported as Sanjay Gupta v. Dr. Shroff’s Charily Eye Hospital, 2002 (62) DRJ 368. An order of termination of an employee, working in a private charitable hospital was challenged in writ proceedings. The court held that in such cases, the terms and conditions of the contract are private in character, and do not involve public law functions. The court rejected the contention that writ proceedings were maintainable, on account of functions of the hospital being of public importance. Here too, whatever be the other obligations cast on the hospital, which may partake of a public nature, contracts of employment, disciplinary action, and termination orders do not answer the description of activities that are of an intrinsically public nature. Therefore, in the light of the judgments cited above, particularly Binny Ltd’s case; Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733 and Sanjay Gupta v. Dr. Shroff’s Charily Eye Hospital, 2002 (62) DRJ 368, it has to be held that the petitions are not maintainable, since the dispute does not fall within the domain of public law.

Reliance was also placed on the decisions in Institute of Technology v. Union of India, 1991 Supp (2) SCC 12 : C.L. Subramaniam v. Collector of Customs, (1972) 3 SCC 542 : AIR 1972 SC 2178, by the petitioners, to say that failure to provide a legal practitioner vitiated the conduct of the proceedings, and rendered it arbitrary, and thus, amenable to writ jurisdiction. I am of the opinion that such alleged wrongful action can be questioned in civil proceedings; or remedies available under the Industrial Disputes Act, as the case may be; a petition under Article 226 of the Constitution of India would neither appropriate nor maintainable.
14. For the foregoing the petitions and applications are dismissed with no order as to costs. All interim orders stand discharged. The petitioners are entitled to initiate such legal proceedings as they may choose, and as is available in law. All rights and contentions of parties are kept open.”

57. The above decision is clearly inapplicable to the facts of the present writ. Firstly, this decision was rendered solely on the consideration that private disputes, such as employment disputes, cannot be litigated through a writ petition, as alternative remedies are available. Secondly, the Court did not consider contract disputes to be part of functions that were important to the public. The ld. Single Judge dismissed the contention that writ proceedings were maintainable on the grounds that the Hospital’s functions were of public importance. Clearly, employment disputes did not constitute a part of the Hospital’s public functions.
58. However, in the present writ, the facts are completely distinguishable. Here is a situation where the semen sample is stored with the IVF lab of the Hospital. There exists no alternative remedy for the Petitioner to secure the release of the semen sample. There is an imminent threat that the said sample would be destroyed, rendering the Petitioners’ rights, whatsoever they may be in law, infructuous. No document has been placed on record by the Hospital to demonstrate as to how the transfer of the semen sample would take place after the death of the donor. As per the Hospital’s own stand52, in the absence of any guidelines or regulations, the Hospital was unable to take any decision in relation to the disposal of the frozen semen sample of the deceased.
59. Considering the above position, it is clear that the Petitioners cannot be left without a remedy in this unique situation and cannot also be relegated to a civil court. In the opinion of this Court, questions relating to the freezing of semen samples and their release to legal heirs of individuals who provided such samples undoubtedly constitute a public function, thereby bringing the Hospital’s actions or inactions within the scope of Article 12 of the Constitution of India.
60. In this context, the decision of the Supreme Court in Binny Ltd. & Anr. v. V. Sadasivan53 is relevant. The Supreme Court observed that a ‘writ’ was a public law remedy, and that it was difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. The relevant portion of the said judgment reads as follows:
“10. The Writ of Mandamus lies to secure the performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the sovereign to subordinates. In England, in early times, it was made generally available through the Court of King’s Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporation which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. In the Administrative Law (Ninth Edition) by Sir William Wade and Christopher Forsyth, (Oxford University Press) at page 621, the following opinion is expressed:
…
29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies.

30. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed that the Government or Government authorities at all levels is increasingly employing contractual techniques to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.

32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.”

61. In the fact of the present case, control over human reproductive material, for example, semen sample, ova samples, and use of human reproductive material constitute an important public function. Handling, preservation, and potential release of human reproductive material involves significant ethical, social, and legal considerations that extend beyond the realm of private contractual relationships. Such control over human reproductive material, given its important implications on family lineage, reproductive rights, and potential future generations, constitutes an important public function. Merely because contracts are entered into between donors and IVF clinics in respect use and disposal of human reproductive material, it cannot be said that there is no public law element. Thus, in the opinion of this Court, the present writ is maintainable.
ANALYSIS AND FINDINGS

62. The present petition raises several important issues, including legal and ethical issues relating to giving birth to progeny. The Petitioners are the parents of the deceased who intend to use the semen sample admittedly for the purposes of continuing the legacy of their son. The son died intestate. He was unmarried at the time of his death and did not also admittedly have any partner or spouse. Thus, his primary legal heirs are his parents.
63. The Court is faced with a diabolical situation in which its order could have the impact of permitting the parents of the deceased to in effect give birth to a grand-child in the absence of their son. Apart from the legal issues, there are moral, ethical and spiritual issues that confront the Court in such a situation. However, the issues raised ought to be merely decided on the basis of the existing legal and statutory framework and not on the basis of any other extrinsic material.
64. The legal regime itself which is prevalent is only in the form of two enactments, namely, ART Act, 2021, and the Surrogacy Act. Both these statutes do not deal with the fact situation that the Court is currently confronted with. The statutes do not even contemplate the scenario as has arisen in the present case and thus there is clearly a legal vacuum.
65. The powers of Courts to hand even a death sentence or bring an end to life for example in cases of euthanasia, etc. have been pronounced upon in the past either under criminal jurisprudence or under Article 21 of the Constitution of India. However, hitherto, the Court has not come across a case in India where its order could in fact lead to the birth of a life or a child. It is this scenario that the Court struggles to deal with in the present case.
66. The ld. Counsels for the parties in this case deserve special credit for the volume of legal precedents and material they have placed from various jurisdictions. A perusal of these decisions and material would reveal that Courts across the world have dealt with similar situations and have rendered decisions based upon the legal position prevalent in the said countries. But the common thread in all these decisions is the dilemma that the Courts have faced, especially when the prayer for release of a semen sample is made by the proposed grand-parents of a yet to be born child. Before going further, therefore, the first step would be to analyse the various judicial decisions from other countries which have been placed before the Court.
A. Analysis of the decisions relied upon by the parties.
67. In Hecht (supra) (1993), the Court of Appeal of California was dealing with a case where the claimant was the girlfriend of the deceased and she was opposed by the deceased’s adult children. The deceased had stored his sperm in a sperm bank to whom he had given instructions that the claimant was entitled to the sperm if she wishes to become impregnated. The County Court had ordered destruction of the deceased’s sperm which was in control of the sperm bank. The same was appealed by the claimant. The two adult children of the deceased were from the previous marriage.
68. The Court of Appeal of California considered the two main issues. Firstly, whether the claimant had an interest in the preserved sperm and secondly, whether there was any public policy issue, which prohibited artificial insemination of a girlfriend, who was not a married woman, especially at the instance of the deceased’s children, who felt that there were other means by which she could have impregnated after the death of the deceased.
69. The Court of Appeal of California held that the deceased, at the time of his death, had an interest, which was in the nature of ownership over sperm. He also had the decision-making authority as to the manner in which the same ought to be used for reproduction. Considering the nature of the substance, the same would constitute property. The Court considered that at the relevant point in time, the legal position regarding property rights in the human body was unsettled, as Common Law historically refused to recognize a property right in human bodies, or only recognized a quasi-property right.
70. Relying on Davis (supra), the Court of Appeal of California observed that sperm which is stored by its provider, with the intent that it be used for artificial insemination is thus unlike other human tissue because it is “gametic material”, which can be used for reproduction. For the Court of Appeal of California, the value of the sperm lies in its potential to create a child after fertilization, growth, and birth. Thus, it was concluded that at the time of his death, decedent had an interest, in the nature of ownership, to the extent that he had decision making authority as to the use of his sperm for reproduction. Such interest was sufficient to constitute “property” within the meaning of Probate Code. The relevant portion of the decision reads as follows:
“The Davis court also notes that The American Fertility Society suggests that “‘Within the limits set by institutional policies, decision-making authority regarding preembryos should reside with the persons who have provided the gametes. . . . As a matter of law, it is reasonable to assume that the gamete providers have primary decision-making authority regarding preembryos in the absence of specific legislation on the subject. A person’s liberty to procreate or to avoid procreation is directly involved in most decisions involving preembryos.'” (842 S.W.2d at p. 597.)

(4b) Sperm which is stored by its provider with the intent that it be used for artificial insemination is thus unlike other human tissue because it is “gametic material” ( Davis v. Davis, supra, 842 S.W.2d 588, 597) that can be used for reproduction. Although it has not yet been joined with an egg to form a preembryo, as in Davis, the value of sperm lies in its potential to create a child after fertilization, growth, and birth. We conclude that at the time of his death, decedent had an interest, in the nature of ownership, to the extent that he had decisionmaking authority as to the use of his sperm for reproduction. Such interest is sufficient to constitute “property” within the meaning of Probate Code section 62. Accordingly, the probate court had jurisdiction with respect to the vials of sperm. In concluding that the sperm is properly part of decedent’s estate, we do not address the issue of the validity or enforceability of any contract or will purporting to express decedent’s intent with respect to the stored sperm. In view of the nature of sperm as reproductive material which is a unique type of “property,” we also decline petitioner’s invitation to apply to this case the general law relating to gifts of personal property or the statutory provisions for gifts in view of impending death. (See Prob. Code, § 5700 et seq.)”

71. The Court of Appeal of California then considered the question of artificial insemination in case of unmarried women, and also aspects relating to post-mortem artificial insemination. The Court held that there was nothing in the public policy of California that prescribed artificial insemination of the claimant, merely because she was an unmarried woman. On the question of posthumous conception or post mortem artificial insemination, the Court of Appeal of California observed as under:
“[*858] Echoing some of the concerns expressed by Shapiro and Sonnenblick, real parties argue that “this court should adopt a state policy against posthumous conception,” because it is “in truth, the creation of a orphaned children by artificial means with state authorization,” a result which they characterize as “tragic.” However, real parties do not cite any authority establishing the propriety of this court, or any [**289] court, to make the value judgment as to whether it is better for such a potential child not to be born, assuming that both gamete providers wish to conceive the child. In other words, assuming that both Hecht and decedent desired to conceive a child using decedent’s sperm, real parties fail to establish a state interest sufficient to justify interference with that decision. As in Tennessee, we are aware of no statutes in California which contain a “Statement of public policy which reveals an interest that could justify infringing on gamete-providers’ decisional authority [***47]…. “(Davis v. Davis, supra, 842 S.W2d 588. 622)

We also disagree with real parties’ claim that any order other than destruction of the sperm is tantamount to “state authorization” of posthumous conception of children, i.e., the creation of a public policy in favor of such conception. In such a case, the state is simply acknowledging that “no other person or entity has an interest sufficient to permit interference with the gamete- providers’ decision …. because no one else bears the consequences of these decisions in the way that the gamete- providers do.” (Davis v. Davis, supra, 842 S.W.2d at p. 602.)”

72. Finally, the Court rejected the argument, and held that the Probate Court ought to first treat the matter as a surrogacy arrangement or adoption and appoint guardian ad litem, at this stage, prior to the conception itself. The said observation is relevant and is set out below:
“At this point, it is also entirely speculative as to whether any child born to Hecht using decedent’s sperm will be a burden on society. Real parties also offer no authority for [***53] their suggestion that if the sperm is to be distributed to Hecht, the probate court should first treat of the matter as a surrogacy arrangement or adoption and appoint a guardian ad litem for the unborn child(ren) and conduct a fitness hearing as to Hecht’s fitness to bear a child. We know of no authority which would authorize the probate court to proceed in the foregoing manner, much less provide it authority to address the issue of Hecht’s fitness to bear a child.”

73. In Elizabeth Warren (supra) (2014), an application was filed before the High Court of Justice (Family Division), UK, seeking a declaration to allow the sperm of Warren Brewer, who died on 7th February, 2012, to be stored beyond 18th April 2015, for up to 55 years until 18 April 2060. This would permit his widow, Elizabeth Warren, to use it for conceiving a child. Mr. Brewer, was diagnosed with a brain tumour in 2005, and stored his sperm before starting radiotherapy due to the risk of infertility. Initially, he consented to a three-year storage period, but later extended it, naming Elizabeth Warren, his partner, as the intended recipient for posthumous use in fertility treatment. In the said decision, the High Court of Justice (Family Division) allowed the application, and observed that there was no conflict of individual rights, as both Mr. Brewer and his wife, Mrs. Warren, were in agreement that she should have the opportunity to conceive a child using his sperm after his death. However, the challenge arises from the fact that Mr. Brewer’s written consent did not specifically extend the storage of his sperm beyond the statutory period required by regulations, even though he had provided consent for his wife to use his gametes posthumously. Mrs. Warren relied upon Article 8 of the European Convention on Human Rights, to argue that she had the right to become a parent by her deceased husband, which aligned with his wishes. The Court recognized Mrs. Warren’s right under Article 8 of the European Convention on Human Rights, and acknowledged that Mr. Brewer was not given the necessary information or opportunity to provide consent for extended storage beyond the statutory period.
74. The case of M. v. HFEA (2016) (supra) came before the Court of Appeal. A, the Appellants’ daughter, was diagnosed with cancer at 21 and passed away six years later in 2011. Despite her illness, A wanted to have children, even underwent the process of egg retrieval and storage during a period of remission in 2008. Although A did not have a partner at the time, her mother had offered to carry A’s children, and A accepted this. Ms. A signed forms consenting to the storage and posthumous use of her eggs, although she did not complete the necessary forms for the use of donor sperm. According to her mother, Ms. A was clear in her wishes for her mother to carry and raise her children after her death, expressing this desire repeatedly in her final years. Following her death, A’s parents have sought to fulfil her wish to have children, and planned to use an anonymous sperm donor from a New York sperm bank, but they encountered obstacles due to the incomplete consent forms.
75. The Court of Appeal allowed the appeal, and reversed the decision of the High Court, which had refused the