The Delhi High Court has granted a couple access to their son's sperm for posthumous conception through surrogacy.

The parents of Preet Inder Singh, a 30-year-old man who died in 2020, applied to the court to use his frozen sperm for surrogacy. Preet Inder was diagnosed with non-Hodgkin's lymphoma in 2020 and froze his sperm at Delhi's Ganga Ram Hospital before undergoing chemotherapy, as he was advised the treatment could impacted his fertility. He then died in September of that year. Harbir Kaur and Gurvinder Singh, sought to fulfil their son's desire to have a child and requested the release of his frozen sperm. The clinic denied their request, and the parents petitioned the Delhi High Court to gain access.

On 3 October 2024, the court ruled in favour of the parents and ordered the hospital to hand over the sample. Justice Prathiba Singh, who presided over the case, said 'Under the prevailing Indian law, there is no prohibition against posthumous reproduction if the consent of the sperm owner or egg owner can be demonstrated.' This landmark ruling was given after a four-year legal battle and sets a precedent for posthumous reproduction in India.

The hospital argued that gametes could only be released to a patient's spouse, as the Assisted Reproductive Technology (Regulation) Act 2021 only covers posthumous use of gametes in circumstances where the deceased is married. The Indian government opposed the parents' petition, arguing that surrogacy laws in India are intended to assist infertile couples and women, not people wanting a grandchild.

Justice Singh recognised that the case would have been less complex if Preet Inder was married, but said 'In the absence of a spouse, the question arises: is there any prohibition on posthumous reproduction under the existing law? The answer is clearly in the negative. In the absence of any such prohibition, this court is unable to read a restriction where none exists.'

Preet Inder had given 'express consent' for the preservation of his sperm before starting chemotherapy. This, the court said, showed his intention for future procreation, even though he did not survive his treatment. The court noted that the sperm, as Preet Inder's genetic material, could be considered his property and passed on to his parents 'as in the absence of a spouse or children, they became legal heirs under the Hindu Succession Act.'

In her order, Justice Singh cited several international cases on posthumous reproduction, including recent case in Israel, but noted that there is no international consensus on the issue. Some countries, including the UK, allow posthumous reproduction with written consent (see BioNews 1148) while the practice is banned elsewhere.

The court said its decision would be communicated to the Union health ministry, to consider whether further law or guidance is required to address the issues raised.