If married, only dead man's wife has right over preserved sperm; father doesn't have any right over son's progeny

Asok Kumar Chatterjee Vs The Union of India and Ors

Calcutta HC

19/01/2021

W.P.A. No. 4553 of 2020

About/from the judgment:

The High Court dismissed a petition wherein the Petitioner (father), on the basis of his parental relationship with the deceased, sought permission to collect preserved sperm of his dead son, irrespective of the permission of his wife.

The Court ruled that the petitioner (Father) does not have any 'fundamental right' to such permission, merely by dint of his father-son relationship with the deceased.

The matter before the Court

The petitioner (father of deceased) contended before the Court that his son was a patient of Thalassaemia and while in matrimony with the respondent no. 4 (wife of deceased), he died. During his lifetime, the deceased had his sperm stored with the St. Stephen Hospital, Tis Hazari, New Delhi.

After his demise, his father (the petitioner) approached the said hospital for releasing such sperm in his favour on the ground that he is the father of the deceased donor.

The Hospital, however, said that the further usage of sperm, that is, for providing pregnancy to the donor's wife, donation to someone else or discarding, could be decided only after permission of the patient's wife (marriage proof required).

Upon such intimation, the petitioner urged the wife of his late son to issue a 'no-objection' to the petitioner for collecting the aforesaid sperm, however, she did not give any reply to the said communication.

Relying on the parental relationship of the petitioner and the deceased, he asserted his right to collect such sperm, irrespective of the permission of the wife of the deceased.

Court's Observations

The Court remarked,

"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."

The Court further said,

"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."

Regarding issuing a direction upon deceased man's wife to respond to the petitioner's communication, the Court remarked that the same was beyond the scope of the writ court, since the matter does not involve any violation of fundamental or statutory right, nor does the wife comes within the definition of 'State' as envisaged under Article 12 of the Constitution of India.

Hence, the writ petition was found to be not maintainable on such score either and accordingly, the plea was dismissed.

Read the Judgment

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