Kerala HC Allows Widow To Use Deceased Husband’s Cryopreserved Embryos For Assisted Reproduction [Read Judgment]

Ernakulam: The Kerala High Court has allowed a writ petition filed by the widow of a man who passed away in 2021, directing a Thiruvananthapuram hospital to permit her to use the couple's cryopreserved embryos for assisted reproduction, despite the hospital's objection that the consent on record did not specifically permit use by the surviving spouse.

Justice Harisankar V. Menon was hearing a writ petition filed by the petitioner, whose husband had died in 2021, seeking a direction to the hospital to release and permit her to use embryos that had been cryopreserved during his lifetime while the couple was undergoing infertility treatment. The hospital had declined the request on the ground that a specific written consent referable to Section 22(1)(a) of the Assisted Reproductive Technology (Regulation) Act, 2021 was not available, since the consent obtained at the time of cryopreservation did not contain any option permitting the embryos to be used by the surviving spouse.

Counsel for the petitioner argued that the consent obtained by the hospital amounted to substantial compliance with Section 22(1)(a) of the ART Act, and relied on the 129th Report of the Parliamentary Standing Committee on Health and Family Welfare, which recommends permitting posthumous collection of gametes, as well as a Delhi High Court decision permitting the parents of a deceased unmarried man to use his preserved semen. The Central Government Counsel, appearing for the Union and the National Assisted Reproductive Technology and Surrogacy Board, opposed the petition, pointing out that the statutory Form 9 under the ART Rules specifically allows a husband to direct that embryos be 'handed over to the wife' in the event of his death, whereas the consent actually obtained only permitted use of the embryos by an unrelated couple, and contended that permitting the petitioner's request would go against the deceased's evident wishes and raise questions of inheritance and other ethical and legal issues.

Examining Section 22 of the ART Act together with Rule 13(1)(f)(iv) and Form 9 of the ART Rules, the court noted that the statute contemplates three choices for both spouses in the event of death that the embryos be allowed to perish, handed over to the surviving spouse, or used for research and held that the hospital ought to have obtained consent in the prescribed Form 9 rather than the non-standard consent it had actually used.

The court found that, although the consent obtained did not offer a specific 'handed over to spouse' option, the husband had nonetheless chosen, among the options available to him, that the embryos be used by an unrelated couple rather than allowed to perish or reserved for research, indicating an intention that they be put to actual, meaningful use rather than his consent being read as opposed to any use by his own wife. 

Reading this alongside the Parliamentary Standing Committee's recommendation that posthumous reproduction be permitted unless the deceased had specifically objected or there were strong indications against it, the court held that "the intention of the deceased was to ensure the 'actual use' of the embryos, and, therefore, the wish of the petitioner-wife to become a parent deserves to be respected."

The court accordingly allowed the writ petition, directing the 4th respondent hospital to permit the petitioner to use the preserved embryos of her deceased husband for the purpose of assisted reproduction.

Appearances:

For the Petitioner: Sri. B. Renjithkumar and Smt. Clara Sherin Francis, Advocates.

For Respondents 1 and 2: Sri. K. Arjun Venugopal, Central Government Counsel.

For Respondent 3: Sri. Dinesh Thankappan, Government Pleader.

Case Title: XXX vs. Union of India and Others, WP(C) No. 22457 of 2025

[Read Judgment]