We are mortal and will have to die one day. Some die naturally and some die unnaturally. As for societal norms, we must have family members and children who can do the last rituals and someone must be there to continue our generation. But there are many cases where the spouse dies in an uncertain incident without having their child. In such a situation sometimes, the other spouse may not remarry and may love to stay alone with the memories of his/her beloved. For them, there is a medical technology that will help a lady to conceive through IVF from the semen retrieved from her dead husband. The process of IVF (In vitro fertilization) or ART (assisted reproductive technology) is not new to us. In both, this process gametes from the couples are collected and with the help of the technology, it is fertilized in the laboratory and then it is inserted in the wife’s womb or into the surrogate mother depending upon the cases. Normally, the gametes are collected from living couples for IVF and ART.
But posthumous sperm retrieval (PSR) is the opposite. Here sperm is retrieved from the dead person through medical technology within 30 hours of death. The cause of death does not matter in the case of sperm retrieval. The worldwide first document of PSR was reported in 1980 and the first baby conceived from it was born in 1999. Though it is not allowed in every country due to many legal and moral obligations, especially regarding the rights of the child in a male family who is born after the death of the male through PSR. Though in many cases when it comes to organ donation we have heard and seen cases where either the person before death agreed to donate his vital organs to another or in some cases, it’s the family members who decide to donate the organs of a brain dead person or a deceased person to another person so that they can survive with the help of the donated organs. But posthumous sperm retrieval is something very personal where the family members especially the wife’s consent matters; she has to carry the child and look after the child alone. In developing countries, PSR is not allowed. But some countries like Israel, Australia, the UK, etc allow PSR with proper guidelines and legislation. Coming to Israel, PSR is allowed only for military personnel where the soldiers immediately after joining the service will give their consent for PSR if they die in service. There are many critics of PSR, it is an injustice to bring a child into this world knowing that child will not have a father. However, according to me, when single parents were allowed to go for surrogacy as well as for adoption in many countries, then why not for PSR? PSR is a medical option for those who want to have their baby even after the death of their husband. Here the decision should be of the husband (in the form of consent given before death if possible) as well as the wife as the interest of the child will be vested in them only. Coming to the Indian scenario, we don’t have any legislation and guidelines relating to PSR. Though we too had reported cases of it. The first of this kind of request was reported in 2016 when AIIMS, New Delhi, refused to do the PSR on a request of a wife whose husband died suddenly, due to a lack of legislation and guidelines.
The couple was childless and the wife wanted to have a baby with her husband who was dead. Although the family members of the couple agreed and supported her decision for PSR, due to legal issues they could not get the benefit of this much less-known technology. Surprisingly, it was in 2006 that two forensic experts namely R.V. Bardale and P.G. Dixit predicted that in future developing countries like India will see an increasing request for PSR, in one of their research papers published in the Indian Journal of Medical Ethics. Their prediction proved to be correct as in recent times many requests have come before the judiciary. Before the 2021 amendment of the MTP Act, abortion was not allowed for the widow and divorcee. But now it is allowed as the law respects and protects the wish of women, whether she is widow or divorcee. If a woman wants to have her baby from her deceased husband, then there is no wrong with it. The advancement of medical technology will be useful to us only when we will be able to use it.
During war, and insurgency, many police personnel, and military personal die. For their spouse, if the law permits, PSR will be a boon. During Covid too, many spouses requested PSR. But medical staff denied it. Every technology has some pros and cons in it. We have to frame laws and regulations in such a way that their negative effect will be less in our society. India is a developing country and medically we have done lots of progress in the last few years. One such achievement is Covid vaccination. It’s high time to have regulations and guidelines related to PSR in India so that spouse of the deceased husband can take benefit from advanced technology.
Dr Pyali Chatterjee is HOD, Faculty of Law, ICFAI University, Raipur, Chhattisgarh.
