Only wife has right over dead man’s sperm: Calcutta HC – Times of India

Kolkata: Only the widow has the right over a dead man’s sperm, the Calcutta High Court has ruled, turning down an appeal by a father to be given his only son’s sperm preserved in a Delhi sperm bank.
The father had moved the high court in March 2020, saying their daughter-in-law had not only refused to give them the nod to get the sperm, but also refused to acknowledge their pleas. The father feared that if the sperm was destroyed, or unused, during the period of agreement with the hospital sperm bank, “they are going to lose their clan”.
Justice Sabyasachi Bhattacharyya, in his three-page order on January 19, said: “The petitioner does not have any fundamental right to such permission, merely by dint of his father-son relationship with the deceased.”
The HC said the sperm preserved at the Delhi hospital “belonged to the deceased” and, since he was married when he died, “the only other person, apart from the deceased, having any right to it is his wife”. The high court added that the “father-son relationship of the petitioner and the deceased does not entail any such right of the petitioner to the progeny of his son. As such, the right espoused by the petitioner for himself is illusory and nonexistent.”
The Kolkata-based father had moved the HC saying his son, a Delhi University doctorate, suffered from thalassemia and was being treated at a Delhi hospital. After taking medical opinion and consent of everyone, he married a Delhi resident in October 2015. After a few months, the couple moved to West Midnapore where the husband joined a local college as a senior academic. But in 2018, he suddenly passed away.
After their son’s death, the parents wrote to the sperm bank urging that their son’s sperms not be destroyed during the two-year agreement period, without their consent.
The hospital wrote back to the father in 2019, saying “that the further usage of sperm, that is, for providing pregnancy to the donor’ wife, donation to someone else or discarding, can be decided only after permission of the patient’s wife”, for which a marriage proof is required.
The father alleged he pleaded to his daughter-in-law to give a “no-objection certificate” but his pleas were not acknowledged. He then moved court arguing that being a father it was his “right to collect such sperm, irrespective of the permission of the wife of the deceased”. Else, he argued, the court should direct his daughter-in-law to respond to his pleas.
The high court said it could not issue any direction to his daughter-in-law, since, “the same is beyond the scope of the writ court, since the matter does not involve any violation of fundamental or statutory right” and neither does the wife, “come within the definition of ‘State’ as envisaged under Article 12 of the Constitution of India”.