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

A couple in India say they are “delighted” after a court ordered a hospital to hand over their dead son’s frozen semen sample to them so they can have him through gestation. surrogacy.

The Delhi High Court’s landmark order came after a four-year legal battle.

“We are so unlucky, we lost our son. But the court has given us a very precious gift. Now we can get our son back,” mother Harbir Kaur told the BBC.

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

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

“Before he started chemotherapy, the hospital advised him to store his semen because the treatment could adversely affect his sperm quality,” Gurvinder Singh told the BBC.

Preet Inder, who was unmarried, agreed and his sample was frozen on June 27, 2020. He passed away in early September.

Several months later, when the grieving parents sought access to their son’s frozen sperm, the hospital denied their request. The couple then filed a petition in the Delhi High Court.

The couple, in their 60s, told the court they would foster any child born using their son’s semen sample. And in the event of their death, their two daughters pledged in court that they would take full responsibility for the child.

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

She added that parents are entitled to this form because if there is no spouse or children, they become legal heirs as per the Hindu Succession Act.

The couple said they came to court because they wanted to continue his “legacy” and that the order would help them maintain a connection to him and keep their family name alive.

“He loved his sisters very much and was loved by his friends. He’s the screensaver on my phone. I start my day by looking at his face every morning,” Ms. Kaur said. She did not want to share his photo with the BBC because of privacy concerns.

She added that the family was considering using his sperm for surrogacy and that a relative had agreed to be the surrogate. “We’ll keep it in the family,” she said. According to Indian law, commercial surrogacy is illegal.

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

In court, she cited 2018 case of a 48-year-old woman in the western Indian city of Pune, who had twin grandchildren through surrogacy using the semen of her 27-year-old son who died of brain cancer in Germany.

Her son, also unmarried, allowed his mother and sister to use his semen after his death and the hospital in Germany gave them his semen samples.

Mrs. Aggarwal also gave an example about a case from 2019 in which the New York Supreme Court allowed the parents of a 21-year-old military cadet killed in a skiing accident to use his frozen sperm to have a child grandchildren.

In his order, Judge Singh also cited several cases of posthumous procreation, including a 2002 case in Israel where the parents of a 19-year-old soldier killed in Gaza were allowed to use semen. their son’s sperm to produce children through parthenogenesis. a surrogate mother.

So if there is a precedent, why did the hospital refuse the couple’s request?

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

USA, UK, Japan, Czech Republic and some other countries allow posthumous copying with written consent. Australia imposes an additional condition of a one-year waiting period after death to allow time for emotions to cool down.

This practice is banned in some countries like Italy, Sweden, Switzerland, France, Malaysia, Pakistan, Hungary and Slovenia, while most of India’s South Asian neighbors – Sri Lanka, Nepal, Bhutan and Bangladesh – no instructions.

And even in countries with posthumous fertility laws, the majority of cases involve a spouse who wants to use frozen eggs or sperm to conceive.

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

In court, Ganga Ram Hospital said that legally, they could only provide test samples to the spouse. They said there were no clear laws or guidelines governing the disclosure of a deceased unmarried man’s semen sample to his parents or legal heirs.

The Indian government also opposed the couple’s petition, arguing that surrogacy laws in India are aimed at supporting infertile couples or women, not those who want to have grandchildren.

Authorities also pointed out that Preet Inder is unmarried – Indian. Assisted Reproductive Technology (ART) Act 2021 prohibits single people from having children by surrogacy – and he did not leave any written or oral consent for the use of his frozen sperm so his parents have no rights automatically use it.

Ms Aggarwal, the couple’s lawyer, argued in court that in filling out his semen storage form, Preet Inder had clearly stated that that was the purpose of IVF.

She told the BBC that the form contained the mobile phone numbers of both father and son, implying consent. She pointed out that the father had paid the lab to preserve the sample.

She said, the ART Act was introduced to prevent the use of surrogacy services for commercial purposes, to manage and supervise clinics, and not to infringe on the personal freedom of parents. unfortunate.

Justice Singh agreed with Ms Aggarwal’s argument that Preet Inder had consented to his sperm being used for the purpose of procreation.

“He is not married and has no partner. He plans to use this form to have children. When that person dies, the parents are the heirs of the deceased and the semen sample is the genetic material and constituting property that the parents have the right to release.”

Under those circumstances, the court said it could not prohibit the couple from accessing their son’s semen sample.

The court order, Ms. Kaur said, gave her “a glimmer of hope, a glimmer of light” that “we can get our son back.”

“Every day I pray to fulfill all my child’s unfulfilled wishes. It took four years but my prayers were answered,” she added.