Can woman use donor sperm to conceive child sans estranged husband's consent? Karnataka HC asks

The Karnataka High Court was recently decided to examine whether a married woman can use donor sperm to conceive a child, to preserve her right to motherhood while divorce proceedings initiated by her husband remain pending.

The Court was dealing with a case where a woman (petitioner) wished to undergo in vitro fertilisation (IVF) to conceive a child.

She and her husband had earlier stored samples of their gamates (eggs and sperm) at an IVF clinic, which she wished to use to have a child. However, her husband later filed for divorce and withdrew consent for the use of his sperm.

Justice Suraj Govindaraj on July 28 observed that the Court cannot compel the husband to consent to the use of his stored sperm for conception by IVF.

However, the Court said it would examine whether the law permits alternative solutions to ensure that his wife's right to motherhood can be protected, including through sperm donor-assisted conception.

"This is not purely legal. We can't look at it technically. These are newer technologies which keep coming. There are newer issues. We have to try and solve the problem and give them some recourse," the judge said.

Appearing for the petitioner-wife, advocate Parveez Ahamed MR submitted that both spouses had entered into a second marriage and had undergone seven to eight IVF procedures after they were unable to conceive naturally. The husband already had a child from his previous marriage, whereas the petitioner (wife) remained childless.

The petitioner's counsel stated that her eggs and the husband's sperm remain stored at the IVF clinic. However, fertilisation cannot proceed because the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act) requires the husband's consent, which he withdrew after matrimonial disputes arose.

Counsel argued that the petitioner faces an irreversible loss because the divorce proceedings may continue for years.

"By the time the divorce proceedings conclude, I might lose my last chance," the petitioner's counsel submitted.

He added that if the husband was unwilling to permit the use of his sperm, the petitioner should at least be allowed to proceed with donor sperm.

The husband opposed the wife's plea. The Bench, in turn, asked whether the husband's objection was limited to the use of his sperm or whether he opposed his estranged wife becoming a mother altogether.

"What is the problem? Wife having a child with your sperm or from a donor?" Justice Govindaraj asked.

The Court added that if the wife is permitted to conceive through a donor before the divorce proceedings are over, the estranged husband could be insulated from all legal or maintenance obligations arising from the birth of the child.

Addressing the woman's counsel, the Court said,

"You will have no claim for any property or any other right. You will not have any claim against (the husband) for any property or maintenance, or otherwise. You won't have any claim whatsoever."

The Court also indicated that if required, it could consider issuing directions to clarify that the child born out of IVF would not have succession or maintenance claims against the husband.

The husband's counsel sought time to obtain instructions from his client upon the Court making this suggestion.

Appearing for the Union of India, Assistant Solicitor General Sadhana Desai submitted that the ART Act recognises only two categories of persons who are eligible to undergo IVF - commissioning couples and eligible single women in specified circumstances.

Since the parties continue to be legally married, she argued that the petitioner cannot independently seek donor-assisted IVF treatment outside the statutory framework.

The ASG also cautioned that permitting such relief without legislative backing could create complications regarding parentage, birth registration and other legal consequences under the ART and surrogacy laws.

"I totally understand that there is a very urgent requirement, but it should be backed by some provision of the statute," she submitted.

Justice Govindaraj, however, observed that courts are often called to decide on issues that the legislature may not have forseen.

"These are newer technologies which keep coming. New issues keep coming up. How do we solve that? As a policy matter or by interpretation? We'll have to try and solve the problem and give them some recourse," the judge said.

At the same time, the Court emphasised that any relief granted must be anchored in the statutory framework.

The Court also encouraged the parties to explore an amicable resolution, before adjourning the matter to another date.