Kochi, Sep 15 The Kerala High Court has granted a widow the legal right to use embryos frozen and preserved with her late husband to try to become pregnant, despite the absence of an explicit written post-death consent form identifying her as the beneficiary.
In its order, the High Court prioritised the deceased husband’s underlying intent over a technical paperwork lapse caused by the hospital.
The woman had moved the High Court after the hospital, where the embryos were preserved when she and her husband were undergoing infertility treatment, said that her spouse's written consent was required to allow her to use them.
She had sought the embryos for the in-vitro fertilisation (IVF) after her husband's death.
The woman claimed in the court that her husband had given a consent to the hospital, during their treatment, for use of the embryos.
However, the hospital claimed the consent was for use of the embryos by some unknown couple.
The woman's plea was opposed by the central government which claimed that consent as required under the Assisted Reproductive Technology (Regulation) Rules, 2022 for use of the embryos by the wife was not given by the husband and therefore, he did not want her to use them.
Coming to the aid of the woman, Justice Harisankar V Menon said that there was no provision in the hospital's consent form for handing over embryos to the wife, unlike the form under the ART Rules, and therefore, the husband opted for the option of giving it to unknown couples.
The court said that the husband actually wanted the embryos to be used and if the hospital's consent form and that under the ART Rules are read together, "it can only be assumed that the husband wanted the wife to use the embryos after his death".
"In such a situation, I am of the opinion that merely because the 4th respondent hospital has chosen to collect Ext.P3 (consent form) as against the statutory format at Form 9 (under ART Rules), the request made by the wife is not to be disallowed.
"As has been found, 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," Justice Menon said and allowed the plea.
It directed the hospital to allow the woman to use the preserved embryos for the purpose of assisted reproduction.
