Bombay High Court Restrains IVF Clinic From Discarding Deceased Son’s Semen After Mother's Petition

The petitioner (deceased’s mother) asserted that the frozen semen should be treated as property, and since she is her son’s legal heir, she is entitled to determine its fate.

A Bench of Justice Manish Pitale noted that the petition raised important and complex legal questions concerning the status and treatment of human gametes after a person’s death, especially under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act).

Advocate Nikhilesh P appeared for the Petitioner and Additional Government Pleader Savina R. Crasto appeared for the respondents.

Background

The petition was filed by the deceased’s mother, who sought to preserve her late son’s semen with the intention of ensuring the continuation of his genetic legacy.

She contended that as the sole legal heir of her son, she had a right to decide on the use of his reproductive material, and that the semen should be treated as property.

Her son was diagnosed with Ewing Sarcoma, a rare form of cancer affecting bones and soft tissues, in 2023. On the advice of his oncologist due to the fertility-compromising effects of chemotherapy—he opted to preserve his semen at an IVF facility in Mumbai’s Andheri locality.

Following his death, the petitioner approached the IVF clinic and requested that the frozen semen be retained and transferred to another fertility centre in Ahmedabad. However, the clinic rejected her request, citing a pre-signed consent form. In this document, her son had selected an option instructing the clinic to discard all stored semen samples in the event of his death.

Faced with the clinic’s refusal, the mother approached the State Public Health Department, designated as the “Appropriate Authority” under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act). When she failed to get a response from the department, she escalated the matter to the Union Ministry of Health and Family Welfare. Her representation was eventually rejected on May 6, 2025, prompting her to move the High Court for urgent relief.

Findings

The Court emphasized that the urgency of the issue required immediate intervention. The Court said, “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."

Accordingly, interim relief was granted in the form of a direction to the IVF clinic not to discard the frozen semen until the case is fully heard.

During the hearing, the petitioner cited a 2024 Delhi High Court judgment that had granted similar relief to the parents of another deceased unmarried man. However, the Union Government distinguished the present case by arguing that, unlike the Delhi matter, the deceased in this case had explicitly directed disposal of the semen post-death.

The Bombay High Court, however, noted that the ART Act currently lacks clear legal guidelines on posthumous reproduction, especially in cases involving unmarried individuals or where the deceased's reproductive intentions are ambiguous or inadequately documented.

The Court permitted the petitioner to amend her petition to challenge the specific rules and regulatory gaps under the ART Act.

The Union government was directed to inform the Court whether any existing national-level guidelines address such posthumous scenarios involving stored gametes.

The matter has been scheduled for further hearing on July 30, 2025, and the semen sample’s viability deadline of July 31, 2025 adds further urgency to the proceedings.

Cause Title: Sakshi Rajan Patekar v. State of Maharashtra

Appearance:

Petitioner: Advocates Nikhilesh P, Tanmay T. Jadhav, Sushil Shilwant, Sneha Kadam, and Akshay More.

Respondents: Additional Government Pleader Savina R. Crasto, Advocate Yashodeep Deshmukh, Ashutosh Mishra.

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