Posthumous Reproduction: Comparative Analysis and Its Instigation in Indian Jurisprudence

Introduction

Procreation, is an activity associated with satisfying sexual urges and needs, but more importantly ensuring the continuation of a lineage and nurturing the next generation. After the unfortunate death of a certain male without any offspring, his spouse ends up with a single option, which is to adopt a child to continue the legacy of the deceased male. People go through unfathomable anguish when they learn that their spouse has passed away. Trying to hold onto a bit of the deceased is one method to cope with that suffering, which can manifest in various ways. Being able to keep their loved one’s cremated ashes close at hand, for example, brings comfort to some people. In circumstances involving posthumous reproduction, the portion is the sperm. The survivors might find solace in knowing that the sperm is available in case they need it, even if they are never used to conceive.

The goal of Assisted Reproductive Technologies (“ART”) is to satisfy an underlying human need to procreate. These technologies include In vitro Fertilization (“IVF), cryopreservation of gametes (eggs and sperm), and embryos. In addition to facilitating human reproduction in a wide range of medical and societal contexts, these methods allow for the creation of life through the use of gametes or embryos from a deceased genetic parent. The technique of using ART to create a pregnancy and genetic offspring after a parent passes away is known as Posthumous Reproduction.

From a legal perspective, posthumous reproduction is still in an elementary stage across various nations’ jurisprudence, especially debuted in Indian jurisprudence through the case Gurvinder Singh & Anr. Vs. Government of NCT of Delhi & Ors[i], in which the Delhi High Court held that under the prevalent Indian laws, there is no prohibition against posthumous reproduction if the consent of the egg owner or sperm owner can be demonstrated. The peculiarity of this case is that the frozen sperm samples of the deceased were claimed by his parents rather than any spouse. The Hon’ble Justice Prathiba M. Singh, while handling such an atypical situation, the High Court observed that “if the deceased had been married and had a spouse, the issues would not have been as complex. In the absence of a spouse, the question arises: Is there any prohibition against posthumous reproduction? The answer is negative” and allowed the frozen samples of the deceased to be released and turned over to the deceased’s parents as they are the first-class heirs to the deceased in the scenario. This paved the way for the introduction of posthumous reproduction in Indian jurisprudence. This blog will discuss the historical legislative development and comparative analysis of Posthumous Reproduction, along with an analysis of the judgment given in the Gurvinder Singh case.

Legislative developments over time and Comparative Analysis

Infertile couples may be treated using their own or donated genetic material- sperm, eggs, or even embryos, posthumously as part of medically assisted reproduction. Government rules and regulations are now required to guarantee the responsible and safe use of these technologies. The Infertility (Medical Procedures) Act, 1984 in Victoria, Australia, was the first law in the world to regulate assisted reproduction, enacted as a groundbreaking in vitro fertilisation developments in Victoria, the Act itself was a response to rapidly advancing assisted reproductive technologies and ensuring ethical, social and legal concerns of the process. It has since been superseded by the Infertility Treatment Act, 1995[ii]. Several jurisdictions, like South Africa (Reproductive Technology Act 1988) and Western Australia (Human Reproductive Technology Act 1991), have since enacted legislation. The Human Fertilisation and Embryology Act of 1990 regulated this practice in the United Kingdom. The regulatory framework, which took effect on August 1, 1991, aims to establish a comprehensive legislative framework, except for Surrogacy (controlled by the Surrogacy Arrangements Act of 1985). European countries with legislation include France, Holland, Germany, Austria, Norway, Sweden, Denmark, and Spain.

At the larger point, countries like Czech Republic Japan, United Kingdom allow posthumous reproduction without any guidelines. Meanwhile, countries like Hungary, Slovenia, Pakistan, and even Australia prohibit such forms of reproduction. Some countries such as Poland, Malta, Cyprus, and Latvia have no specific guidelines for posthumous reproduction. English law prioritizes the reproductive rights of gamete suppliers, even after their death. The 1990 Act allows widows to use sperm or embryos once their husbands or partners have granted written consent before their death.

But this is not the same in some jurisdictions. Specifically, in the state of Victoria, Australia, it was initially prohibited to use gametes or embryos of the dead via the Infertility Treatment Act 1995. On the other hand, countries like Germany and France completely banned posthumous reproduction.

Most of the time, the courts permit the retrieval of the gametes but deny the usage of such. The retrieval is permitted because of the urgency of the retrieval procedure. The gametes must be retrieved within 72 hours to maximize the likelihood of successful fertilization. In some occurrences, the courts have relied upon facts of the particular case to decide.

The Deceased’s Prior Concern

The issue of consent is central to the argument about postmortem reproduction. The majority view is that extracting and using the deceased’s gametes without their consent is morally unacceptable and violates the fundamental ethical tenet of respect for autonomy. The consent may be expressed or presumed. In most parts of Australia, there is no peculiar law to decide the merit of posthumous reproduction; it is based on organ donation law. Hence, such a method only applies with the consent of the deceased, that too only in writing.

But in certain instances, this principle was not considered absolute. Interestingly, the Australian courts have granted to retrieve and use gametes of the deceased even in the lack of prior written consent of the deceased. In YZ v Infertility Treatment Authority[iii], it was observed that “consent is usually given by words or by conduct not by legal instrument.” 

The British Colombian Supreme Court faced a similar situation in the case K.L.W. v. Genesis Fertility Centre[iv], in which the deceased’s sperm sample was extracted and stored, before his death and the argument revolved around whether the stored semen can be used for reproductive purposes. The issue was that the deceased had not given any written consent to the use of the reproductive material. The Supreme Court of British Columbia determined that the principal purpose of its storage was for it to be uses as a reproductive material. As long as the sperm was not sold, it may be given to the spouse. The use was restricted by the condition set by the Supreme Court of British Columbia, which stated that the reproductive material could only be used for the production of embryos for the spouse’s reproductive use and for no other purposes.

Hence, it is quite understandable that the necessity of assent from the deceased plays a vital role in using the extracted reproductive material. Ethicality plays a crucial part in this aspect, more than legal merit. Even though many jurisdictions have various concerns about this issue, almost all of them confine the commercial use of this extracted material.

Ethical theories and arguments:

Sexual intercourse, as the majority of people are convinced, should be the only reasonable way for the conception of children. Hence, the idea of utilizing the sperm of a dead person may seem unpalatable for some, it may seem that it is a disgrace to the deceased. Supporters of this position believe that assisted reproductive technology should only be used for conceiving living individuals’ gametes. From a societal perspective, the idea of posthumous reproduction may seem unethical because it places the physicians and doctors in the place of couples in the process of reproduction.

The rightness and wrongness of an act should be judged solely based on their results. It may seem unethical as it can be seen as a process of producing fatherless children. Death ends marriage. Therefore, the posthumously begotten child may be seen as an illegitimate child in the eyes of society. Hence, from an ethical point of view, the idea of posthumous reproduction is a controversial process, but history always utters a simple truth: Innovations have always been a driving force behind human progress, yet society and the ethicality behind it often resist the new inventions. However, after the initial resistance subsides, society tends to embrace and integrate these innovations, often transforming them into indispensable tools.

Instances where posthumous reproduction proved beneficial

The Concept of Posthumous Reproduction has indeed acted as a boon in certain situations. In 2007, Kynesha and Dayne Dhanoolal got married, and after Dayne’s deployment to Iraq, Kynesha sought to conceive her child. However, he was killed by an Improvised explosive device, and the army transferred his body to Dover Air Force Base. Kynesha, who was appointed administrator of Dayne’s estate, sought a temporary restraining order to prevent embalming his body. She argued that she had a quasi-property right regarding the disposition of Dayne’s remains, that she would not be harmed by the extraction, and that it would be in the public’s interest to preserve marriage and procreation. After the court allowed sperm to be retrieved, Kynesha was successful in having her baby and upheld the legacy of her deceased husband.[v]

In other case like the case of Diane and Stephen Blood. The couple were trying to conceive when Stephen contracted meningitis. Diane requested Stephen’s sperm from his doctors, but the Human Fertilisation and Embryology Authority (“HFEA”) challenged her right to it due to its extraction without his consent. Diane sought permission to export the sperm to Belgium, but the HFEA refused. After appealing to the Court of Appeal, the HFEA allowed Diane to export the sperm to Belgium, allowing her to use it for her children. Diane, who conceived two children using her dead husband’s sperm, has no regrets.[vi]

No one plans for their death. As Erna Bombeck said, “Children make your life important.” A person may feel a strong desire to ensure the life of a deceased person by ensuring the birth of children.  Hence, a new procedure to continue the legacy of the deceased by ensuring childbirth with the help of the deceased’s reproductive material is an appropriate measure.

Posthumous Reproduction in India: A New Enigma in Indian Jurisprudence

Indian jurisprudence, comprehensive in many aspects, is often characterized by a degree of uncertainty. The concept of posthumous reproduction has been introduced amidst these significant legal and societal uncertainties. The Delhi High Court in the case Gurvinder Singh & Anr. Vs. Government of NCT of Delhi & Ors held that the process of posthumous reproduction cannot be held defective as no standing provision bars it.

The facts of the case are that the parents of the deceased were seeking to release the semen samples, which were stored in the hospital (one of the respondents in the case) before the unfortunate death of the deceased. The hospital refused to release the frozen sperm without any prior order from the court and also refused to accept any further payments for storing the reproduction material in question. The hospital also claimed that it is not a public entity and hence the present writ would not be maintainable as it would not come under the scope of Article 12 of the Indian Constitution.   

But the main issue of this case is that the deceased was unmarried and had no future commitments in hand. Hence, this situation induced a legal enigma about whether the petitioners in the writ petition come under the purview of “intending couples” in the Surrogacy Regulating Act. The Ministry of Health and Family Welfare (“MoHFW”) was one of the respondents in the case and raised the same question in their response. They also contended that the scope of The Assisted Reproductive Technology (Regulation) Act, 2021 (“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 Hon’ble High Court of Delhi analysed all the submissions and initially held that the present writ is maintainable. It opined that Article 226 of the Indian Constitution uses the phrase ‘any person or authority’ to refer to any person or body doing ‘public duty’, not just statutory authorities and instrumentalities of the state. The name of the institution is unimportant; what matters is the nature of the duty imposed on the body. The duty is based on a positive obligation owed by the relevant person or authority to the affected party, regardless of how it is enforced.

The Hon’ble Court went on to analyse further findings including the ethical and legal complexities relating to giving birth to a progeny. As the deceased, in this case the son of the petitioner, died intestate. As he was unmarried at his time of his unfortunate death his primary legal heirs are his parents. The Court was confronted with a perilous situation in which its order could effectively allow the deceased’s parents to give birth to a grandchild in the absence of their son. Apart from legal difficulties, the Court must consider moral, ethical, and spiritual challenges in such situations. However, it also noted that these questions should be decided solely based on the current legal and statutory framework, not on any additional extrinsic evidence. The current legal regime consists of only two enactments: the ART Act and the Surrogacy Act. Both of these statutes do not address the factual circumstances that the Court was faced with. The statutes did not even contemplate the scenario which has arisen in the present case and thus there was a clear legal vacuum. Thus, the Hon’ble court had to refer decisions from various jurisdictions to handle this quandary.

The initial issue before the Hon’ble High Court was whether the sperm or any other reproductive material constitutes a property. In Black’s Law Dictionary (9th ed)[vii] defines “property” as: “The right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel)” OR “Any external thing over which the rights of possession, use, and enjoyment are exercised”.

In Hecht vs Superior Court[viii], The Court of Appeal of California recognized that sperm stored by its supplier for use for artificial insemination differs from other human tissue in that it is “gametic material” that can be used for reproduction. The Court of Appeal of California noted that the value of sperm stems from its ability to produce a child following fertilization, growth, and birth. Thus, it determined that at the time of his death, the decedent had an ownership-like interest, to the extent that he possessed decision-making authority over the use of his sperm for reproduction. This interest was sufficient to constitute “property” under the Probate Code.

Similarly, in Roblin v. The Public Trustee for the Australian Capital Territory & Anor,[ix] the Supreme Court of the Australian Capital Territory ruled that the stored semen constituted the deceased’s personal property and part of his inheritance. The deceased had ownership of it while alive, and upon his death, it would be passed on to his representatives.

Then the question arises whether the ART act applies to the present petition. In the current petition, the Respondents’ responses have principally focused on the Petitioners’ potential use of the deceased’s semen sample for reproduction/procreation. Several provisions, including the ART Act, have been used to argue that the Petitioners’ claim is not permissible under current laws. A simple analysis of the facts shows that the father of the deceased approached the hospital for the release of the sperm on 21st December, 2020, while the ART act was enacted in 2021. Hence it is quite understandable that the ART Act is not applicable to the facts of the present case as the semen sample was preserved when the Act had not come into force, and it’s the provisions do not address the factual situation contemplated in this case. Even if the provisions of the Act are considered for the principles that are recognised therein, there is no prohibition on the release of the sample to a person who is not a spouse, as evident from the discussion above.  

The final issue is whether the parents are entitled to the release of the semen sample. This is a simple problem to resolve because any biological material belonging to the dead who died intestate would undoubtedly belong to his heirs. Under the Hindu Succession Act of 1956, which applies to the Petitioners, in the absence of a spouse or children, the deceased’s parents are the Class-1 lawful heirs. Thus, both conditions are met: the semen sample is a property and the petitioners are the heirs to it. As a result, they have the right to release the semen sample.

Hence, with all these observations, the Hon’ble High Court of Delhi held that the sperm constitutes property and the parents are the legal heirs of the deceased. As there is no provision for this particular situation, the court held that it was unable to deliver a restriction where none exists.

While the court’s decision permitted the retrieval of the deceased’s sperm, it also highlighted the critical need for comprehensive legislation to address the legal, ethical, and sociological issues surrounding post-mortem reproduction.

Conclusion

Sigmund Freud said, “It would be one of the greatest triumphs of humanity, one of the most tangible liberations from the constraints of nature to which mankind is subject, if we could succeed in raising the responsible act of procreating children to the level of a deliberate and intentional activity and in freeing it from is    its entanglement with the necessary satisfaction of a natural need.”[x] He can rest in ease now.

This blog aims to strike a balance between respecting the reproductive rights of deceased individuals and supporting the best interests of posthumously conceived children. The government is unlikely to outlaw posthumous reproduction. Rules must be established to address ethical concerns related to posthumous reproduction. Decisions to prohibit posthumous reproduction should not be based solely on the principles of autonomy and bodily integrity, but should also consider the deceased’s interest in genetic continuity, the partner’s interest in procreating and becoming a parent, the parent’s interest in grandparenthood, and the child’s ability to be born.