The Delhi High Court recently granted permission to the wife of an incapacitated Indian Army soldier to extract his sperm for conceiving his child through Assisted Reproductive Technology In-Vitro Fertilization (IVF treatment) [Ms. X Vs Union of India & Ors.]
In a verdict delivered on April 13, Justice Purushaindra Kumar Kaurav noted that the soldier's prior consent for such treatment will apply even while he is incapacitated.
The Court was hearing a petition filed by the wife of the soldier seeking the extraction and cryo-preservation of her husband’s sperm for the purpose of conceiving a child.
The Court observed that the couple had decided to undergo IVF treatment in 2023 before he was incapacitated. On the basis of the husband’s consent given in the past for IVF treatment, the Court said that the same would be sufficient even if he is currently in a vegetative state.
“It is directed that the petitioner’s husband action and his consent of joining the IVF treatment be treated to be sufficient compliance for the purposes of Section 22 of the ART Act,” the judge ruled.
The Union of India cannot oppose the wife's plea on the sole ground of absence of husband's explicit consent, the Court made it clear.
“It is further directed that the petitioner’s consent be considered as valid consent for her husband for the purposes of IVF procedure, if the same is required for any other step/procedure. The respondents shall not disentitle the petitioner on the sole ground that the petitioner’s husband’s written consent is absent,” the judgment said.
The couple had opted for IVF treatment to conceive a child in 2023. However, the husband suffered a brain injury in 2025 while performing his official duty in Jammu & Kashmir and became bedridden.
Earlier, the Army had permitted continuation of IVF treatment of the soldier. However, the process was subsequently halted.
The wife then moved the High Court invoking the provisions of the Assisted Reproductive Technology (Regulation) Act, 2022 (ART Act) and also her fundamental right of reproduction guaranteed under Article 21 of the Constitution of India.
The wife sought permission for extraction and preservation of her husband's sperm in furtherance of their mutual marital decision to conceive a child. She stated that her husband is presently medically incapacitated and incapable of giving fresh written consent for participating in IVF process. It was also submitted that there is no reasonable likelihood of her husband's recovery from vegetative state.
The Union of India opposed the wife’s plea on the ground that the husband has not given an express consent to take his sperm under section 22 of the ART Act.
Section 22 of the ART Act states that in case of death or incapacity, IVF clinics and banks cannot cryo-preserve gamete (sperm) without consent in writing from all the parties seeking assisted reproductive technology.
The Court observed that the ART Act has to be interpreted keeping in mind the wife's fundamental right to have a child.
"The right to reproductive autonomy, it must be remembered, is a fundamental right. The ART Act must be so interpreted which furthers the said right, and not derogates from it," the Court stated.
It also considered the medical opinion given by the Board of Officers at Army Hospital as per which retrieval of sperm is technically feasible but the chances of getting a viable sperm are meagre.
The Court stated that under such circumstances, the Union of India cannot insist upon the husband’s consent.
“Whether or not the petitioner herein, and her husband, Mr. Kumar, are to beget a child, is not in human hands. It is destiny that determines whether or not the fortune of parenthood shall get bestowed upon persons. This Court ought not to interdict the fate of the petitioner by insisting from Mr. Kumar, that which is physically impossible and impracticable," the Court stated.
The Court observed that the prior consent given by the husband would be sufficient in terms of the section 22 of the ART Act.
Accordingly, the Court allowed the wife's plea subject to statutory compliances and the medical condition of the husband.
Advocates Arjeet Gaur, Atul Yadav, Jasbir Singh Balhara, Sidarth Yadav, Prince Sharma, Subhan Singh Sejwal, Saurabh Bharti, Mayank Dev, Pawan Yadav, Kiran, Himanshi, Himanshu Dutt and Deepshikha appeared for the wife.
Senior panel counsel Ayush Gaur with advocate Riddhi Kapoor and government pleader Harshit Joshi appeared for the Central government.
[Read Judgment]