Delhi High Court Permits Sperm Retrieval Of Soldier In Coma, Holds Prior IVF Consent Sufficient

The Delhi High Court has permitted the extraction and cryopreservation of sperm of an Indian Army soldier in a persistent vegetative state, holding that his prior consent to undergo IVF treatment with his wife constituted valid consent under the Assisted Reproductive Technology (Regulation) Act, 2021.

Citing Śrīmad Bhāgavatam, Justice Purushaindra Kumar Kaurav directed that the authorities shall not disentitle the wife on the sole ground that the husband's written consent was absent.

The Court added that the process shall, however, be subject to other statutory compliances and the medical condition of the husband.

The wife had approached the Court seeking directions to allow retrieval and preservation of her husband's genetic material to enable her to undergo IVF.

Her husband, a soldier, suffered a severe traumatic brain injury during deployment in Jammu & Kashmir in July last year and has since remained in a persistent vegetative state.

Prior to the incident, the couple had already opted for IVF and initiated procedures. However, the process was halted due to the husband's inability to provide fresh written consent as required under Section 22 of the ART Act.

A medical board constituted by the Army opined that while sperm retrieval was technically feasible, the chances of obtaining viable sperm were “meagre.”

Disposing of the plea, the Court noted that the couple had volunteered for the IVF treatment and procedure in furtherance of the said treatment admittedly had been undertaken by them.

It concluded that the husband consented for undergoing the IVF treatment and there was no material on record, or any indication, to the contrary.

Noting that the couple may not have visualised or foreseen the unfortunate incident which had occurred in July last year, Justice Kaurav observed that:

“While the learned counsel for the respondent is correct in contending that as on date there is no express indication of consent from the petitioner's husband, however, under the facts and circumstances of the present case, it is found to be fair, reasonable, and just for the respondents to undertake the necessary procedure/steps which are required to take the IVF treatment to its logical conclusion. But for this, the original consent given by the petitioner's husband shall stand vitiated, and the very purpose for acceding to the IVF treatment shall be rendered otiose.”

The Court reiterated that procedure is the handmaiden of justice and non-compliance with the bare, strict, text of a procedural provision, destroying the substantive intent of the legislation, ought not to be countenanced. The right to reproductive autonomy, it must be remembered, is a fundamental right. The ART Act must be so interpreted which furthers the said right, and not derogates from it,” the Court said.

It also observed that whether the couple are to beget a child is not in human hands and it is the destiny that determines whether or not the fortune of parenthood shall get bestowed upon persons. This Court ought not to interdict the fate of the petitioner by insisting from Mr. Kumar, that which is physically impossible and impracticable, it added.

Justice Kaurav relied upon a Kerala High Court order wherein interim relief was granted wherein the husband, who was in a brain dead condition and kept alive with ventilator support, was allowed extraction and cryopreservation of the gametes.

“Having considered the overall prospectus of facts and situation, it is directed that the petitioner's husband action and his consent of joining the IVF treatment be treated to be sufficient compliance for the purposes of Section 22 of the ART Act,” the Court said.

“It is further directed that the petitioner's consent be considered as valid consent for her husband for the purposes of IVF procedure, if the same is required for any other step/procedure. The respondents shall not disentitle the petitioner on the sole ground that the petitioner's husband's written consent is absent,” it added.

Title: Ms X v. UNION OF INDIA & ORS

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