‘Our son is dead. Now we can use his sperm to have a grandchild’

An Indian couple said they were “delighted” after a court ordered a hospital to provide a frozen sperm sample from their dead son so they could have a grandchild.

The Delhi High Court’s landmark judgment came after a four-year legal tussle.

“We were very unlucky, we lost our son. But the court has given us a very precious gift. Now we will be able to get our son back,” the mother, Harbir Kaur, told the BBC.

Ms Kaur and her husband Gurvinder Singh filed a petition in court after Delhi’s Ganga Ram Hospital in December 2020 refused to release their son’s sperm stored in their fertility clinic.

The couple’s 30-year-old son, Preet Inder Singh, was diagnosed with Non-Hodgkin’s Lymphoma in June 2020 – a type of blood cancer – and was admitted to hospital for treatment.

“Before he started chemotherapy, the hospital advised him to save his sperm as the treatment could affect his sperm quality,” Gurvinder Singh told the BBC.

Preet Inder, who was single, agreed and his sample was confirmed on 27 June 2020. He died in early September.

A few months later, when the grieving parents wanted to get their son’s sperm frozen, the hospital refused their request. The couple then appealed to the Delhi High Court.

The couple, who are in their 60s, told the court that they would raise any child born using their son’s sperm sample. And in the event of their death, their two daughters have given a bond to the court that they will take full care of the child.

In his order last week, Justice Prathiba Singh said that “under Indian law, there is no law that prohibits posthumous reproduction” if the owner of the sperm has given consent.

He also added that parents have the right to receive a sample since there is no spouse or children, they are legal heirs under the Hindu Succession Act.

The couple said they went to court because they want to continue his “inheritance” and that this order will help them keep in touch with him and help their family name to continue.

“He loved his sisters and was loved by his friends. You are the screensaver on my phone. I start my day by looking at his face every morning,” said Ms. Kaur. He did not want to share his photo with the BBC due to privacy concerns.

He also added that the family is thinking of using his sperm to marry him and the relative has agreed to marry him. “We will keep it in the family,” he said. Under Indian law, business acquisitions are illegal.

The case is rare, but not without precedent, his lawyer Suruchii Aggarwal told the BBC.

In court, he quoted 2018 case of a 48-year-old woman from the western Indian city of Pune who conceived twin grandchildren using the sperm of her 27-year-old son who died of brain cancer in Germany.

Her son, who was also single, had authorized his mother and sister to use his sperm after his death and a German hospital gave them his sample.

Mrs. Aggarwal too he gave an example of a 2019 case in which the New York Supreme Court allowed the parents of a 21-year-old military schoolboy who died in a skiing accident to use his frozen sperm to have a grandchild.

In his order, Justice Singh also cited several cases of posthumous reproduction, including a 2002 case from Israel in which the parents of a 19-year-old soldier killed in Gaza received legal permission to use their son’s sperm to have a child. a false mother.

So if there is an example, why did the hospital reject the couple’s request?

As Justice Singh said in his order, there is no international consensus on this issue.

The US, UK, Japan, Czech Republic and other countries allow posthumous reproduction with written consent. Australia imposes an additional waiting period of one year after death to allow time for emotional stability.

The practice is banned in several countries such as Italy, Sweden, Switzerland, France, Malaysia, Pakistan, Hungary and Slovenia, while most of India’s neighbors in South Asia – Sri Lanka, Nepal, Bhutan and Bangladesh – have no guidelines.

And even in countries with laws on posthumous reproduction, many cases involve a spouse who wants to use frozen eggs or sperm to conceive.

The number of bereaved parents looking for their sons’ sperm has increased Israeland as the conflict with Russia escalated, Ukrainian soldiers were offered free sperm cryopreservation. But in India, this is still rare.

In court, Ganga Ram Hospital said that legally they can release the sample only to her partner. They said there are no clear rules or guidelines governing the release of sperm samples of a man who died unmarried from his parents or legal heirs.

The Indian government also opposed the couple’s request, saying that surrogacy laws in India are designed to help couples or infertile women, not people who want to have a grandchild.

Authorities also revealed that Preet Inder was single – from India Assisted Productivity Act (ART) 2021 prohibits unmarried people from having children by birth – and that he had not left any written or oral consent for his frozen sperm to be used so his parents had no automatic right to use it.

Ms. Aggarwal, the couple’s lawyer, stated in court that when he filled out the form to save his sperm, Preet Inder made it clear that it was for IVF.

The form, he told the BBC, had the mobile phone numbers of the father and son, meaning consent. He revealed that the father was paying the lab to store the sample.

He said the ART Act, was introduced to stop the use of surrogacy to commercialize, control and direct clinics, not to suppress the personal freedom of the victimized parents.

Justice Singh agreed with Ms. Aggarwal’s statement that Preet Inder had given permission for his sperm to be used for the purpose of having children.

“He was single and did not have a partner. He intended the sample to be used in childbirth. When he passes away, the parents are the heirs of the deceased, and the sperm samples are genetic material and property, the parents are entitled to the same exemption.”

Under those circumstances, the court said it could not prevent the couple from obtaining a sperm sample for their son.

The court order, Ms Kaur says, has given her “a glimmer of hope, a light” that “we will be able to get our son back”.

“I prayed every day to fulfill all my child’s unfulfilled wishes. It has been four years, but my prayers have been answered,” he added.