New Delhi: In August 2024, a woman called A N Anu, whose terminally ill husband was unconscious, moved the Kerala High Court for permission to preserve his reproductive cells so she could have a baby. 

She argued there was no chance he would recover. 

The problem was that the Assisted Reproductive Technology (Regulation) (ART) Act 2021 only allows for preservation of genetic material when the couple seeking it provides “written and informed consent”. 

Anu’s husband had not planned for his death and had not consented to posthumous reproduction in writing.

The lack of planning for postmortem affairs is common among the young and middle aged due to the discomfort surrounding the topic of death and because of a lack of death literacy. 

This is despite the high number of premature and sudden deaths in the country. According to the latest data available, 9.7 million Indians suffered premature deaths in 2017. 

In 2022, about 56,000 people suffered sudden and instantaneous deaths due to cancer, cardiovascular disease, chronic respiratory diseases, and diabetes, while 153,972 people died in road accidents.

When people die prematurely without planning for postmortem affairs, their families are left in the dark about the deceased’s wishes for how to handle those matters.  

In the case before the Kerala High court, there was no evidence of Anu’s husband consenting to reproduction through ART, a set of medical procedures that help people conceive a baby when they are unable to do so on their own. 

Regardless, the court allowed the request on grounds of “equity”, as there was no specific law or legal statute that provided guidance on this particular circumstance. 

For Anu the order is a glimmer of hope that she will still be able to have a family with her husband, even though he is likely to die soon.

Yet, a court might not be the appropriate forum to answer the philosophical, social and political questions around posthumous assisted reproduction without the prior consent of a dead or terminally ill person. 

The ART act was enacted to regulate various ART related services including the eligibility of couples seeking ART, sperm or egg donors, standards to be followed by ART clinics, and the rights of the children born through ART. 

The intent of the act was to enable married and infertile couples to become parents through ART. It did not envision a situation where one of the intended parents is about to die or enters a persistent vegetative state, a chronic state of brain dysfunction in which a person shows no signs of awareness. 

This is clear from the fact that it requires the couple to provide informed and written consent. 

What is ART?

ART covers a range of medical procedures designed to help people conceive when they face difficulties with natural reproduction. It is most commonly used by those dealing with infertility issues, such as problems with sperm production, blocked fallopian tubes, or hormonal imbalances.

One of the most common ART methods is in-vitro fertilisation, or IVF, where eggs are collected from a woman’s ovaries and combined with sperm in a laboratory setting to create embryos. One or more embryos are then implanted into the woman’s uterus in hopes of achieving a successful pregnancy.

Other ART techniques include intracytoplasmic sperm injection, where a single sperm is injected directly into an egg. ART may involve the use of donor eggs or sperm when necessary.

The first recorded success of IVF was when Louise Joy Brown, the world’s first ‘test tube baby’ was born on July 25, 1978. 

Just 69 days later, on 3 October 1978, Dr. Subhas Mukherjee, from Kolkata, announced the birth of Kanupriya, also known as Durga, by means of an IVF procedure using a frozen embryo.

As of 2023, an estimated 2 lakh cycles of IVF were conducted in India every year. Ernst & Young have forecasted that India’s IVF market will reach a value of 1.45 billion USD by 2027.

Unanswered Questions

In March 2018, the Supreme Court ruled that the right to die with dignity, including palliative care to minimise pain before death and the dignified treatment of dead bodies, was a part of the right to life under Article 21 of the Constitution. 

Yet, the Kerala High Court did not consider whether the retrieval of reproductive cells could be considered invasive or undignified, or whether it had the potential to aggravate the patient’s pain or disfigure his body. 

Scientific literature suggests that such procedures can be invasive for men and even more in cases of women.

Another issue is that the ART act does not define the extent to which medical intervention can be allowed to retrieve reproductive material on the request of the surviving spouse.

A further problem is that the Indian Evidence Act 1872 says that a child born within 280 days of the dissolution of a marriage is considered legitimate while Section 33 (1) of the ART Act says that a child born through ART will be considered the legitimate child of the couple.

It is unclear if the children born due to posthumous reproduction are covered under the act and be considered legitimate, entitling them to the surname, citizenship and estate of the deceased person.

The lack of clear laws raises many questions. What should happen in a situation when a pregnant woman enters a persistent vegetative state? Will she be resuscitated and kept on life support till the embryo reaches term? 

Will the surviving parent’s interest in having a child with a deceased or terminally ill partner take precedence over the terminally ill patient’s right to die a painless death and right to consent?

There is currently no law or guidance on who can seek assisted reproduction. Is it restricted to the spouse, or can parents make such a request?

What happens if the parents seek assisted reproduction but the spouse is not agreeable to the same?

Can a fan be allowed to preserve the genetic material of their favourite celebrity? 

Answers to these questions do not currently exist in the country’s laws.

Complex Arguments

Some sociologists and lawyers argue that posthumous reproduction violates the autonomy and the agency of the deceased to determine their posthumous affairs.

They also argue that the children born from posthumous reproduction are likely to suffer emotionally and economically because they may be viewed as a replacement for their deceased parent and will have to face the challenges associated with being brought up by a single parent. 

The medical procedures required for the retrieval of reproductive cells can be viewed as invasive and in violation of the right to die with dignity, held to be a fundamental right by the Supreme Court of India. 

The Supreme Court’s recognition of living wills is an indication that the wishes of individuals regarding their bodily autonomy matters, regardless of whether they have lost consciousness.

The proponents of posthumous reproduction argue that the surviving parent’s interest in having a child outweighs the deceased partner’s right to determine their posthumous affairs. 

They also say children born via posthumous reproduction are likely to receive more love and affection because they represent a lost loved one, and assert there is little to no evidence to show that children brought up by single parents face any harm or difficulties growing up.

Sweden and Germany have banned posthumous reproduction, while USA, South Africa and UK mandate that it can only be used with written consent of the couple, in ordinary circumstances. 

English law allows posthumous reproduction if both parents have given consent before one of them dies or becomes incapable of giving consent. 

Extraction of genetic material without the consent of the deceased is considered a crime in Australia. 

Israel allows extraction of sperm without consent of the deceased husband but does not allow for the extraction of embryos. 

USA’s Uniform Parentage Act 2000, says that children born from posthumous reproduction are considered illegitimate unless the deceased parent had consented before their death.

Time To Get Answers 

In India, Anu is one of the first of many petitioners to get a positive response from a court in such a case.

An October 2024 case saw the Delhi High Court order a hospital to release the frozen sperm of an unmarried deceased man to his parents, allowing them to pursue posthumous reproduction. In this case he had given express consent. 

The court stated that conventional families were not necessary for bringing up healthy children and even grandparents could be allowed to utilise their son’s reproductive cells to continue their legacy. The court emphasised that the best interest of the child should be kept in mind when attempting posthumous reproduction. 

However, the court also noted the conundrum it found itself in, as it was a rare case where it had to decide whether a new life could come into existence. The court had to decide the case as a general rule was missing in the law. 

Other cases of surviving parents who had urged the hospital authorities to preserve the reproductive cells of their deceased or terminally ill partners, saw the doctors refuse, claiming a lack of legal recognition and regulation of posthumous reproduction. 

Given that reproductive cells need to be preserved within 72 hours of a death in order to be viable, most of the parents in these cases were unable to petition courts in time.

The parliament needs to provide clarity on the permissibility and regulation of posthumous reproduction, balancing the fundamental rights of the deceased, the best interest of children and the ability of familial structures in India to accommodate for such scientific interventions. 

Given the time sensitivity of such cases, it is best to have medical and legal protocols in place and for the elected representatives of the people to decide whether we as a society are ready for the dead to reproduce.

(Anchal Bhatheja is a research fellow with the health team at Vidhi Centre for Legal Policy.)

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