Court Emphasizes Deceased's Inferred Consent and Surviving Spouse's Interest in Parenthood under ART Act, Overruling Hospital's Refusal
In a landmark judgment dated September 1, 2026, the Kerala High Court, presided over by Justice Harisankar V. Menon, allowed Priya Sreeraj, the widow of the late Sreeraj, to use embryos cryopreserved during her husband's lifetime for assisted reproduction. The decision clarifies the application of the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), particularly Section 22(1)(a), concerning the necessity of written informed consent for the use of embryos after the death of one partner.
The petitioner and her deceased husband were undergoing infertility treatment at a hospital when embryos were frozen. Upon the husband's death in March 2021, the petitioner sought to use these embryos for in vitro fertilization (IVF). However, the hospital declined her request, citing the absence of a specific consent form (Form 9), as mandated by the ART Act and the ART (Regulation) Rules, 2022. The hospital relied on a different consent form (Ext.P3), which did not explicitly permit the use of embryos by the surviving spouse but instead indicated use by "unknown couples."
The court examined the statutory provisions and the prescribed consent format under Form 9, which explicitly provides options for the husband to decide the fate of embryos in case of death - allowing them to perish, be handed over to the wife, or be used for research. The form used by the hospital lacked this option, leading to ambiguity regarding the deceased husband's consent.
Justice Menon highlighted that although the exact statutory form was not used, the husband's choice in Ext.P3 to allow the embryos to be used (albeit by unknown couples) demonstrated his intention that the embryos be used meaningfully rather than destroyed. The court interpreted this as inferred consent supporting the surviving spouse's request.
Importantly, the judgment refers to the 129th report of the Parliamentary Standing Committee on Health and Family Welfare, which supports posthumous reproduction even without explicit prior consent, unless there is clear objection from the deceased. The report underlines the need to consider the deceased's inferred consent and the surviving partner's interest in parenthood.
Rejecting the Central Government's argument about ethical, social, and legal complexities, including potential inheritance issues and the deceased's possible wish for the wife to remarry, the court ruled that these concerns do not override the petitioner's legitimate right to use the embryos. The judgment also distinguished a prior Delhi High Court decision that allowed parents of a deceased unmarried man to use his preserved semen, by emphasizing the factual differences.
The Kerala High Court's order directs the hospital to permit the petitioner to proceed with the assisted reproduction using the embryos, recognizing the paramount importance of inferred consent and the surviving spouse's reproductive rights.
This judgment sets a significant precedent in ART law, balancing statutory compliance with compassionate interpretation where strict adherence to formality would defeat the fundamental interests of the surviving spouse and the deceased's implied wishes.
Bottom Line:
Assisted Reproductive Technology (ART) - Embryos cryopreserved during the lifetime of a deceased husband can be used by the surviving spouse for assisted reproduction, even in the absence of specific consent in statutory Form 9, if the deceased's inferred consent and the partner's interest in procreation are evident.
Statutory provision(s):
Assisted Reproductive Technology (Regulation) Act, 2021 - Section 22(1)(a), Assisted Reproductive Technology (Regulation) Rules, 2022 - Rule 13(1)(f)(iv) (Form 9)
Priya Sreeraj v. Union of India, (Kerala) : Law Finder Doc Id # 2978402
