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Only Spouse Had The Right Over A Dead Man’s Sperm If Married: Calcutta High Court

The court held that the decision upon preserved sperm of the deceased person belongs to the wife, not the father

By: Malavika S Menon, BBA-LLB, Nehru Academy of Law

The Single bench of Hon’ble Justice Sabyasachi Bhattacharyya delivered the verdict in the Writ Petition filed by Asok Kumar Chatterjee.

In the plea, it was explained that the petitioner’s son was a Thalassaemia patient, and had died while being in a matrimonial relationship with respondent no.4.

During his lifetime, the petitioner had stored his sperm in St. Stephen Hospital, Tiz Hazari, New Delhi. After the demise of his son, the petitioner approached for the sperm on the ground that the petitioner is the father of the deceased donor.

The hospital management announced that only with the permission of the dead man’s wife, the father can use the sperm. Her permission is needed if it is to be used by someone else.

As per this information, the petitioner approached respondent no.4, demanding a non-objection certificate for collecting the sperm from the hospital, her being the widow of his son. Neither the respondent gave any statement to the said communication nor neglected to even acknowledge the request.

So the father, relying on the parent relationship with the dead man and claiming the right over the sperm, irrespective of the daughter-in-law’s decision and in alternative counsel submits for respondent no.4 to permit petitioner or at least respond to the statement.

The court held that despite claiming the right over a parental relationship, the petitioner doesn’t have any fundamental right over the deceased son’s sperm that was collected at St. Stephens, and the sperm belonged to the widow since they were in a matrimonial relationship until his death.

It was further held 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 court also clarified that demanding respondent no.4 ‘s reply is beyond writ since there is no violation of fundamental right or statutory right in this matter and also that respondent no.4 is not within the definition of “state” under Article 12 of the Indian Constitution.

Hence the petition was dismissed. 

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