Kerala High Court Permits Widow To Use Preserved Embroys For Assisted Reproduction After Husband's Death

Justice Harisankar V. Menon referred to Section 22 of the Assisted Reproductive Technology (Regulation) Act, 2021, which provides that an ART clinic can perform any treatment or procedure only with the written informed consent of parties.

“the intention behind incorporating the provisions of Section 22 of the ART Act requires to be noticed. It is specifically found that it is the “deceased's inferred consent” and the “partner's interest” in becoming a parent that require the utmost consideration. As has been found, the intention of the deceased was to ensure the 'actual use' of the embryos, and, therefore, the wish of the petitioner-wife to become a parent deserves to be respected,” the Court observed, taking note of the deceased's written consent to allow unknown couples to use the embroys in the event of his death.

The Court was considering a plea preferred by a widow after an IVF hospital denied her request for utilising her deceased husband's cryopreserved embroys for assisted reproduction.

The couple were undergoing fertility treatments at the respondent hospital when the husband passed away in 2021.

The embroys were cryopreserved during his lifetime. The hospital declined the petitioner's request to use them and pointed out that specific written consent as per Section 22(1)(a) of the ART Act was not available to continue the procedure. Aggrieved, she approached the High Court.

The petitioner's counsel pointed out that consent was already taken at the time of cryopreservation and this was substantial compliance of the provision. She also referred to the observations in the 129th report of the Department-related Parliamentary Standing Committee on Health and Family Welfare, which advised collection of gametes even posthumously. Reliance was also placed on a Delhi High Court judgment wherein the parents were permitted to use the preserved semen of their unmarried son, who died of cancer.

The Centre's counsel invited the Court's attention to Form 9 under Assisted Reproductive Technology (Regulation) Rules, 2022, which contained a clause that would give the husband an option to permit hand over of the embroys to wife in the event of his death. He pointed out that the consent obtained by the hospital was with respect to use of the embroys by unknown couple, not the wife.

After hearing the parties, the Court adverted to Section 22 of the ART Act. It also looked at Form 9 under the Rules and remarked:

“under the provisions of the ART Act and Rules and the Form referred to above, the statute requires the husband/man to consider a situation where, in the unforeseen event of his death, what would be his intention as regards the use of the “embryos”. As per the afore, the husband/man has three choices as under:-

i. To allow the embryos to perish;

ii. To hand over the embryos to his wife; or

iii. To direct that the embryos be used for research purposes.

In the case of the wife/women also, the afore three options are provided.”

Looking at the facts of the case, the Court noted that the hospital did not insist the petitioner or her husband to execute consent as per the Form and the choice of the afore three options were not granted to them. Since the husband had given his consent for use of the embroys by unknown couple, the Court inferred that his intention was to actually use the embroys in case of his death.

Thus, it allowed the plea and directed the hospital to allow the petitioner to use the preserved embroys.

Case No: WP(C) No. 22457 of 2025

Case Title: X v. Union of India and Ors.

Citation: 2026 LiveLaw (Ker) 508

Counsel for the petitioners: B. Renjithkumar, Clara Sherin Francis

Counsel for the respondents: K. Arjun Venugopal – CGC, Dinesh Thankappan - Government Pleader

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