The Kerala High Court recently came to the aid of a 43-year-old widow who was denied the use of embryos she had preserved along with her husband during his lifetime at a hospital for assisted reproduction or In Vitro Fertilisation (IVF).

The hospital, which had refused to give the widow the frozen embryos, claimed that there was no clear indication of whether her husband wanted them to be handed over to his wife following his death.

The consent form signed by the couple only envisaged three scenarios about the fate of the embryos if either spouse were to die: (i) that the embryos be used by an unknown couple (ii) that the embryos be used for research or (iii) that the embryos be destroyed. Left with only these three options, the husband had opted for the use of the embryos by an unknown couple.

Justice Harishankar V Menon noted that no option was given for the handover of the embryos to the wife.

The judge also pointed out such a consent form deviated from the prescribed format in which consent was supposed to be taken from couples undergoing IVF. Under the relevant rules, an option has to be provided for the handover of the embryos to the surviving spouse if either spouse were to die.

The Court concluded that husband, in this case, clearly intended for the embryos to be put to use rather than destroyed.

It added that the wife's interest in becoming a parent must be respected, and her wish cannot be rejected merely because the hospital failed to obtain the husband's consent properly.

"It is specifically found that it is the 'deceased’s inferred consent' and the 'partner’s interest' in becoming a parent that require the utmost consideration. 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," the Court held.

Therefore, the Court ordered the hospital to handover the frozen embryos to the widow.

The September 1 ruling was passed on a plea by a woman who had undergone infertility treatment along with her husband at a hospital in Thiruvananthapuram. Their embryos were cryopreserved during the husband's lifetime.

After the husband's death, the wife sought to use the preserved embryos for IVF treatment. The hospital refused her request citing the absence of a specific written consent as required under Section 22 (1)(a) of the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act).

Section 22 requires the written informed consent of all parties seeking assisted reproductive technology. The ART Rules prescribe a particular form in which consent must be taken to freeze embryos, namely Form 9.

The woman eventually approached the High Court for relief, seeking directions for the handover of the frozen embryos.

The hospital, as well as the Central government, opposed her plea. They argued that the consent form signed by the husband did not authorise his wife to use the embryos after his death. Permitting her to do so would go against his wishes, they contended.

The Court, however, found that the hospital itself failed to provide the prescribed Form 9 to the couple when the ART procedure began.

Instead, the hospital provided a different consent form, which did not contain an option permitting the embryos to be handed over to the surviving spouse if either spouse were to die.

The Court ultimately ruled that there was sufficient material on record to indicate that the husband wished that the embryos be put to use than be destroyed, and nothing to indicate that he did not want his wife to use the embryos.

The Court concluded that the husband's consent for his wife to use the embryos could be inferred in this case.

Accordingly, the Court allowed the widow's petition and directed the hospital to permit her to use the preserved embryos for assisted reproduction.

Advocate Clara Sherin Francis appeared for the petitioner (widow).

Central government counsel K Arjun Venugopal appeared for the Central government and the National ART and Surrogacy Board.

Government pleader Dinesh Thankappan appeared for the State. 

[Read Judgment]