[Cites 7, Cited by 0]
Delhi High Court
Parveen vs Union Of India & Ors on 13 April, 2026
$~87
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4469/2026
Date of Decision: 13.04.2026
IN THE MATTER OF:
MS. X1
.....Petitioner
Through: Mr. Arjeet Gaur, Mr. Atul Yadav, Mr.
Jasbir Singh Balhara, Mr. Sidarth
Yadav, Mr. Prince Sharma, Mr.
Subhan Singh Sejwal, Mr. Saurabh
Bharti, Mr. Mayank Dev, Mr. Pawan
Yadav, Ms. Kiran , Ms. Himanshi,
Mr. Himanshu Dutt, Ms. Deepshikha,
Advocates.
versus
UNION OF INDIA & ORS.
.....Respondent
Through: Mr. Ayush Gaur, SPC with Ms.
Riddhi Kapoor, Advocate and Mr.
Harshit Joshi- Government Pleader.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
JUDGEMENT
PURUSHAINDRA KUMAR KAURAV, J. (ORAL)
कर्मणा दै वनेत्रेण जन्तुदेहोपपत्तये2
Anonymised.
Śrīmad Bhāgavatam 3.31.1. Translation - "A living being obtains a body under the supervision of Daiva".
Signed By:AMIT KUMAR Signed
Signing Date:15.04.2026 By:PURUSHAINDRA
11:12:50 W.P.(C) 4469/2026 Page 1 of 10 KUMAR KAURAV
1. The Registry is directed to mask/anonymise the name of the petitioner
in the judgement and interim orders concerning the present case.
2. The petition is for the following reliefs:
"a) Issue an appropriate writ, order or direction in the nature of
Mandamus, directing the Respondents to constitute an independent and
specialized Medical Board comprising experts in Neurology, Critical
Care, Urology/Andrology and Reproductive Medicine (IVF specialist) for
evaluation of the medical condition of the husband of the Petitioner and to
examine the feasibility of retrieval and preservation (cryopreservation) of
his genetic material (sperm) And
b) Issue an appropriate writ, order or direction directing the Respondents
to permit retrieval and preservation ( cryopreservation) of sperm of the
husband of the Petitioner, who is presently in persistent vegetative state
(coma), so as to enable the Petitioner to undergo Assisted Reproductive
Technology (IVF) in furtherance of the mutual marital decision of the
couple to conceive a child And;
c) Issue an appropriate writ, order or direction declaring that the prior
consent given by the husband of the Petitioner for undergoing IVF
procedure before the unfortunate accident constitutes valid consent in the
peculiar facts and circumstances of the present case, as the husband of the
Petitioner is presently medically incapacitated and incapable of providing
fresh written consent And"
3. The petitioner, the wife of Mr. XX Kumar,3 a soldier (Lance Naik) in
the Indian Army, has filed this petition seeking the extraction and
cryopreservation of her husband's genetic material. The case of the
petitioner-wife rests on the provisions, object and purpose of the Assisted
Reproductive Technology (Regulation) Act, 2021 ("ART Act"), as well as
the constitutional guarantees flowing from Article 21 of the Constitution of
India, including the right to motherhood, dignity, and reproductive
autonomy.
4. The facts of the case would indicate that the soldier Mr. Kumar, who
Anonymised.
Signed By:AMIT KUMAR Signed
Signing Date:15.04.2026 By:PURUSHAINDRA
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is the petitioner's husband, had joined the Indian Army in the year 2014 and
had been serving in the force for more than a decade. There does not appear
to have been any adverse remark in relation to his commitment. His career
has been unblemished and merits respect to his record.
5. The petitioner married Mr. Kumar on 04.03.2017. The couple,
thereafter, desired to expand their family, and in June, 2023, they opted to
conceive a child through Assisted Reproductive Technology In-Vitro
Fertilization ("IVF").
6. Thereafter, on 07.07.2025, Mr. Kumar while being posted at
Dhoodhganga, Jammu & Kashmir, fell from a considerable height, while
patrolling in the operational area, resulting in severe traumatic brain injury.
After undergoing certain surgeries and operations, presently, he is in a
persistent vegetative state. It is contended that there is presently no
reasonable likelihood or foreseeable scope of neurological recovery in the
near future.
7. It appears that on 17.02.2026, while he was undergoing the treatment,
the concerned Authority i.e., Colonel, Commandment, had granted
permission to continue IVF treatment. However, thereafter, the IVF
treatment of the petitioner and her husband was stopped. The present
petition, then came to be filed, which was taken up for consideration on
06.04.2026, whereupon the Court directed for issuance of notice.
8. The matter was, thereafter, called out for hearing on 09.04.2026, and
the Court on the said date passed the following order:
"1. Learned counsel appearing for the respondents has presented a
written instruction from the department which suggests for constitution of
the medical board comprising neurology, neurosurgery, critical care and
reproductive medicine specialists for comprehensive evaluation and final
opinion for sperm retrieval.
Signed By:AMIT KUMAR Signed
Signing Date:15.04.2026 By:PURUSHAINDRA
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2. Let the respondent to go ahead with the proposed plan and to apprise
the Court regarding further examination and the opinion of the specially
constituted medical board.
3. List on 13.04.2026."
9. Today, when the matter was called out, learned counsel for
respondents has placed on record the proceedings of the Board of Officers of
the Army Hospital (R&R), Delhi Cantt. The opinion of the Board of
Officers is extracted as under:
"Opinion of the Board
He sustained traumatic brain injury on 07 July 2025 and has undergone
multiple surgeries hence. He is presently admitted at Base Hospital Delhi
Cantt. He is on tracheostomy for breathing, percutaneous endoscopic
gastrostomy (PEG) for feeding, and per-urethral Foleys catheter. He is
bedridden, unable to communicate because of severe head injury, and
requires constant, round the clock nursing case. Presently, due to Severe
Traumatic Brain Injury the patient lacks decision-making capacity and the
ability to give Informed Consent, which is a mandatory requirement for
any ART procedure as per the ART Act 2021 (as on Oct 2025) [Para
22(1)]
Surgical Retrieval of Sperm from the individual is feasible teachnically.
However chances of retrieval of viable sperm are meagre."
10. A perusal of the aforesaid opinion would reveal that while the surgical
retrieval of sperm of petitioner's husband is technically feasible, however,
the chances of retrieval of viable sperm are suggested to be meagre.
11. During the course of hearing, learned counsel appearing for the
respondents has draws the attention of the Court to the provisions of Section
22(1)(a) of the ART Act. It is his submission that in the instant case there is
no explicit written consent of the petitioner's husband. Section 22 of the
ART Act, is extracted as under:
"22. Written informed consent.
(1) The clinic shall not perform any treatment or procedure without--
(a) the written informed consent of all the parties seeking assisted
Signed By:AMIT KUMAR Signed
Signing Date:15.04.2026 By:PURUSHAINDRA
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reproductive technology;
(b) an insurance coverage of such amount as may be prescribed for a
period of twelve months in favour of the oocyte donor by the
commissioning couple or woman from an insurance company or an agent
recognised by the Insurance Regulatory and Development Authority
established under the provisions of the Insurance Regulatory and
Development Authority Act, 1999 (41 of 1999).
(2) The clinics and banks shall not cryo-preserve any human embryos or
gamete, without specific instructions and consent in writing from all the
parties seeking assisted reproductive technology, in case of death or
incapacity of any of the parties."
12. It be noted that in the instant case, the petitioner and her husband both
had volunteered for the IVF treatment. Procedures in furtherance of the said
treatment admittedly had been undertaken by them. A conclusion can,
therefore, be safely drawn that the petitioner's husband consented for
undergoing the IVF treatment. There is no material on record, or any
indication, to the contrary.
13. The parties, at the relevant point of time, may not have
visualised/foreseen the unfortunate incident which had occurred in the
month of July, 2025. 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.
14. It may also be noted that the ART Act had been legislated "for
addressing the issues of reproductive health where assisted reproductive
technology is required for becoming a parent or for freezing gametes,
Signed By:AMIT KUMAR Signed
Signing Date:15.04.2026 By:PURUSHAINDRA
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embryos, embryonic tissues for further use due to infertility, disease or
social or medical concerns and for regulation and supervision of research
and development and for matters connected therewith or incidental
thereto".4 Section 22 of the ART Act, thus, provides the mere procedure, to
address the broader more fundamental problem, which is being faced by the
citizens. It is trite law, that procedure is indeed the handmaiden of justice.
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.5
15. At the bar, and also in the "Opinion of the Board" it has been
contended by the respondents that the possibility of retrieving viable sperm
is meagre. Whether or not the petitioner herein, and her husband, Mr.
Kumar, are to beget a child, is not in human hands. It is 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.
16. A matter with respect to a similar issue had arisen before the Kerala
High Court in the case of Simi Rajan v. Union of India and Ors.6 In
paragraph nos. 2 to 5 of the said order, the Kerala High Court noted that the
petitioner's husband therein was in a brain dead condition and was being
Preamble to the ART Act.
X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, (2023) 9 SCC
W. P. (C) No. 9271/2026, order dated 09.03.2026.
Signed By:AMIT KUMAR Signed
Signing Date:15.04.2026 By:PURUSHAINDRA
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kept alive with ventilator support. While granting interim relief in favour of
the petitioner the Court allowed the extraction and cryopreservation of the
gametes. The material portion of the said decision reads as under:
"2. The petitioner who is the wife of Mr. Arun Kumar M.V has filed this
writ petition stating that her husband is undergoing treatment at the 5th
respondent-hospital. Her case is that according to the Doctors of the
hospital, her husband suffers from extensive cerebral venous thrombosis
post 2 weeks of chicken pox which has now resulted in his brain death and
he is currently kept alive with ventilator support. In support of the same,
she has produced Ext.P2 certificate issued by the 5th respondent.
Petitioner's case is that she is desirous of extracting and cryopreserving
gametes of her husband who is unable to grant consent to the same as
contemplated under Section 22 of the Assisted Reproductive Technology
("ART") Act due to his present medical condition for future use by the
petitioner to undergo ART services.
3. The case of the petitioner is that in view of the critical condition of her
husband namely Mr. Arun Kumar M.V, there is no possibility of obtaining
written informed consent from him, and if the matter is delayed any
further, irreparable hardship may be caused in view of his health
condition and the impending chance of paternity. It is also submitted by
the learned counsel for the petitioner that the 5th respondent-hospital is
having licence under the ART (Regulation) Act for extracting and
preserving the gametes.
4. Having heard the learned counsel for the petitioner, the learned DSGI
and the learned Government Pleader.
5. Interim relief is granted directing the 5th respondent-hospital to allow
the extraction and cryopreservation of the gametes of Mr.Arun Kumar
M.V by allowing the services of the 6th respondent or other recognized
ART clinics. It is also made clear that, other than the extraction and
preservation of the gametes, no further procedure under the Assisted
Reproductive Technology (Regulation) Act shall be carried out without the
permission of this Court."
17. Reference can also be made to the order passed by this Court in
Gurvinder Singh Vs. State (NCT of Delhi)7. The paragraph nos. 143 and
144 of which reads as under:
Signed By:AMIT KUMAR Signed
Signing Date:15.04.2026 By:PURUSHAINDRA
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"143. Thus, in the opinion of this Court, under the prevailing Indian law,
there is no prohibition against posthumous reproduction if the consent of
the sperm owner or egg owner can be demonstrated. If the deceased had
been married and had a spouse, the issues would not have been as
complex. In the absence of a spouse, the question arises : is there any
prohibition on posthumous reproduction under the existing law? The
answer is clearly in the negative. In the absence of any such prohibition,
this Court is unable to read a restriction where none exists.
144. Given the settled position, as per the medical records produced by
the Gangaram Hospital, the sperm constitutes property and the parents
are the legal heirs of their deceased son. With no prohibition on
posthumous reproduction, and consent having been given by the
Petitioner's son prior to his death, the Court is of the opinion that this is a
suitable case for the release of the sperm sample to the Petitioners."
18. Learned counsel for the has also placed reliance on a decision in the
case of Y vs. A Healthcare NHS Trust,8 passed by the England and Wales
Court of Protection Decisions. Paragraph 23 to 27 of the order passed in Y
vs. A Healthcare NHS Trust, are extracted as under:
"23. Before Z's accident, I am satisfied about the following facts and so
find that:
a. Z and Y had a settled intention to have a brother or sister for
their little boy;
b. Z. and Y had been unable to conceive a second child naturally
and, as a result, had sought a referral for fertility treatment;
c. Z and Y were under the care of a consultant obstetrician and
gynaecologist in order to receive IVF treatment and had an
appointment on 16 July 2018 to progress that treatment; and
d. Z had discussed with Y the posthumous use of his sperm and had
agreed to posthumous use.
24. In reaching my decision, I have taken those factors into account as
well as Y's wishes as to what would be in Z's best interests, she being a
person presently caring for Z by reason of her presence by his bedside and
a person concerned with and interested in his welfare. I have also taken
account of what Z would choose to do about this issue if he knew that he
was catastrophically injured, was being kept alive by means of life-
support and was on the point of that medical treatment being withdrawn
2024 SCC OnLine Del 6902.
Case No. COP13280890 ([2018] EWCOP 18).
Signed By:AMIT KUMAR Signed
Signing Date:15.04.2026 By:PURUSHAINDRA
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resulting in his death. It seems to me that Z would have chosen to allow
clinicians to retrieve his sperm so that it might be stored and then used
after his death so that his little boy might be able to have a brother or
sister. That choice was entirely consistent with the evidence before me and
consistent with what I had learned about Z's hopes and dreams for a
family life with Y and children of their own. I was also satisfied that Z had
contemplated what might happen if he died and that family life might not
include him in person but might, however, include a child conceived by Y
after his death using his sperm. Standing back and applying the law to the
facts of this case, I am in no doubt that the decisions I have taken on Z's
behalf were in his best interests even though his death was imminent.
25. I have already referred to the terms of the draft order which I was
invited to approve. In discussion with counsel, I queried why I was only
being asked to approve authority for the consent of the storage of Z's
sperm and not also consent for the use of that material and any embryos
formed from that material. Given my findings of fact, it seemed to me that
Z would want his sperm not only to be stored but also to be used. Storage
and then use were essential parts of a process which Z had embarked
upon in the hope of providing his son with a brother or sister.
Furthermore, if the consent to use was not executed before Z died, I was
told by counsel that, given the strict provisions of sub-paragraph 1(2) of
Schedule 3 of the HFE Act, there might be real obstacles to the use of Z's
stored sperm after death in the absence of a valid pre-death consent.
Further legal proceedings might well be required. It seemed to me that the
last thing Z would have wanted for Y was that the fertility treatment they
both had embarked upon might be put at risk or delayed by the outcome of
further legal proceedings.
26. I indicated to counsel that it would be undesirable and inconsistent
with the facts of this case for the court not to authorise the execution of
consents for use as well as storage prior to Z's death. Mr Mylonas QC on
behalf of Y agreed as did the hospital trust. The Official Solicitor had not
considered this matter prior to it being raised by me and, having had no
time to investigate this issue, adopted a neutral position on the
authorisation of consent for the use of Z's sperm. Notwithstanding the
position of the Official Solicitor, I was satisfied that I should exercise my
powers to direct the execution of a consent for both the storage and the
use of Z's sperm.
27. My order declared that, by reason of his traumatic brain injury, Z
lacked capacity to provide his written consent for fertility treatment for the
purposes of 27. of the HFE Act, such written consent being required for
the storage and use (but not for the retrieval) of his gametes.
Notwithstanding that Z lacked capacity, I declared that it was lawful for a
doctor to retrieve his gametes and lawful for those gametes to be stored
both before and after his death on the signing of the relevant consents
Signed By:AMIT KUMAR Signed
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storage and use and that it was lawful for his gametes and any embryos
formed from his gametes to be used after his death. I also declared that
the court was satisfied that the requirements of Schedule 3 to the HFE Act
in relation to consent were met in those circumstances. My order
provided for a relative to sign the relevant consent in accordance with the
provisions of sub-paragraph 1(2) of Schedule 3 to the HFE Act."
19. 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.
20. 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.
21. The same shall, however, be subject to other statutory compliances
and the medical condition of the petitioner's husband.
22. Ordered accordingly.
23. Accordingly, with the aforesaid directions, the petition stands
disposed of.
24. Dasti.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
APRIL 13, 2026
Aks/sv/ksr.
Signed By:AMIT KUMAR Signed
Signing Date:15.04.2026 By:PURUSHAINDRA
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