After mother's plea, Bombay High Court stops clinic from discarding deceased son's frozen semen

The Bombay High Court has passed an interim order directing a fertility clinic not to discard the frozen semen samples of a 21-year-old cancer patient who died earlier this year [XX v State of Maharashtra]..The order followed a plea filed by his mother, who argued that the semen constitutes property and that, as her deceased son’s sole legal heir, she is entitled to preserve and use the samples to continue his legacy.A Bench of Justice Manish Pitale on June 25 observed that the matter raised important questions regarding how semen or gametes (reproductive cells) of a person are to be preserved, after the death of such a person, under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act).Further, considering the urgency involved, the Court granted ad-interim relief to the petitioner-mother, by directing the IVF agency to not discard her son's frozen semen samples for now. “The present petition requires consideration as it raises important questions. But, if during the pendency of the petition, the frozen semen of the deceased is discarded, the whole purpose of filing the present petition, would stand frustrated," the Court explained. .The woman (petitioner) before the Court had submitted that her son was diagnosed with Ewing Sarcoma (a rare type of cancer that develops around the bones) in 2023. Subsequently, he was advised by his oncologist to freeze his semen before beginning chemotherapy, which could impair fertility. The son proceeded to freeze his semen with an IVF facility in Mumbai's Andheri.However, the son passed away on February 16, 2025. At the time of his death, he was unmarried, had no partner, and died intestate (without leaving behind a will). After her son’s death, the petitioner contacted the IVF facility requesting that the semen not be discarded and instead that it be transferred to an IVF centre in Ahmedabad. The request was denied on the basis of a consent form signed by the petitioner's son prior to his death, in which he had ticked the option directing the clinic to discard all his frozen sperm samples upon his demise.The petitioner then approached the State Public Health department in March 2025 as the “Appropriate Authority” under the ART Act, seeking relief. After she failed to get a response from the department to escalate the matter to the national board, she submitted a representation to the Union Ministry of Health and Family Welfare on April 28, 2025. The representation was formally rejected by the Union government on May 6, 2025, prompting her to move the High Court for relief. .In her plea, the petitioner challenged the government's rejection of her representation as illegal, insensitive, arbitrary and not in accordance with the law.She argued that her son's act of freezing semen itself implied a reproductive intention. The petition further stated that the consent form provided by the IVF facility offered only two posthumous options - either to discard the semen or hand it over to a wife. It provided no provision for the handover of such samples to the parents or other family members of unmarried individuals.The petitioner also asserted that shortly before his death, her had spoken to a family member, insisting that something must be done with his sperm samples to create children, who could take care of his mother and family. Further, she claimed that “the sperm constitutes property" and that "parents are the legal heirs of their deceased son.".The petitioner, therefore, urged the Court to intervene in the matter. AS interim relief, she sought directions to ensure that her son's semen sample would not be discarded before the petition is fully heard. She also flagged concern that the sample's viability would lapse on July 31, 2025. At hearing preliminary submissions, the Court took note of a Delhi High Court ruling where similar relief was granted to parents of an unmarried deceased son in 2024. However, the Union government told the Bombay High Court that the present case was different. It argued that the deceased man, in this case, had explicitly instructed that the sample be discarded, whereas no such direction existed in the Delhi case.Nonetheless, the Bombay High Court observed that there appeared to be no legal guidelines at present under the ART Act regarding posthumous reproduction.It permitted the petitioner to amend her plea to challenge relevant rules under the Act.The Court further directed the Union government to seek instructions on whether any such guidelines exist, and scheduled the matter for further hearing on July 30, 2025.Advocate Nikhilesh P, along with advocates Tanmay T Jadhav, Sushil Shilwant, Sneha Kadam and Akshay More appeared for the petitioner (deceased man's mother). Additional Government Pleader Savina R Crasto appeared for the State.Advocate Yashodeep Deshmukh, instructed by Ashutosh Mishra, appeared for Union of India. .[Read Order]