The Calcutta High Court on Tuesday had occasion to rule that a father has no “fundamental right” to collect the preserved sperm of his deceased son merely on account of the parental relationship.
Justice Sabyasachi Bhattacharyya added that the wife of the deceased man would have the first rights over the sperm.
“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 non- existent”, the Court found.
In this case, a man (petitioner) had been unsuccessful in his efforts to acquire his deceased son’s sperm, which was preserved during his son’s lifetime at a Delhi hospital. His son was a Thalassaemia patient who was married at the time of his death.
The hospital had informed the petitioner that the further usage of the sperm, which was meant to provide pregnancy to the donor’s wife or someone else, could only be decided after obtaining the permission of the deceased donor’s wife.
The petitioner, therefore, approached the Calcutta High Court for relief, with his counsel asserting that he had rights over his deceased son’s preserved sperm. Justice Bhattacharyya, however, found no merit in the contention.
“As far as the alleged right of the petitioner to collect such preserved sperm of his son, contrary to the arguments advanced by counsel, the petitioner does not have any ‘fundamental right’ to such permission, merely by dint of his father-son relationship with the deceased. The sperm preserved at the St. Stephen Hospital belonged to the deceased and, since the deceased was in matrimonial relationship with the respondent no. 4 at the juncture of his demise, the only other person, apart from the deceased, having any right to it is his wife, that is, the respondent no. 4,” the Court opined.
The Court proceeded to dismiss the writ petition, after also rejecting a prayer to direct the deceased man’s wife to no objection statement with regard to release of her husband’s preserved sperm to the petitioner.
The Judge found that this alternative prayer was beyond the scope of the writ Court since the matter does not involve any violation of a fundamental or statutory right, nor does the wife come within the definition of ‘State’ as envisaged under Article 12 of the Constitution of India.