Kerala High Court Rules Widow Can Use Frozen IVF Embryos After Husband’s Death Despite Consent Form Dispute

A 43-year-old widow was denied the use of her embryo that she had cryopreserved with her husband during his lifetime at a hospital for In Vitro Fertilisation (IVF) or assisted reproduction.

The hospital, which had denied giving the widow the frozen embryos, did so on grounds that there was no indication of whether her husband wanted the embryos to be handed over to his partner after his demise.

The consent form signed by the couple only envisaged three scenarios about the fate of the embryos if either spouse were to die:

• that the embryos be used by an unknown couple

• that the embryos be used for research

• that the embryos be destroyed

Left with only these three options, the couple had opted for the use of the embryos by an unknown couple.

According to Section 22 of the ART Act along with Rule 13 and Form 9 of the ART Rules, 2022 written informed consent of all parties is mandatory, and that Form 9 provides three choices concerning embryos in the event of death:

1. allowing them to perish

2. handing them over to the surviving spouse

3. using them for research.

The Court found that the hospital should have required the couple to execute Form 9 when the ART procedure began. Instead, it had obtained a different consent document, which allowed the embryos to be used by “third party couples” but did not provide an option for their use by the surviving spouse.

The Court ultimately ruled that there was sufficient material on record to indicate that the husband wished that the embryos be put to use rather than be destroyed, and nothing to indicate that he did not want his wife to use the embryos.

The Court took note of the Parliamentary Standing Committee’s observations concerning posthumous reproduction, including the relevance of inferred consent and the surviving partner’s interest in becoming a parent. Ultimately, the Court said that the husband’s consent could not be viewed in isolation and ordered the hospital to permit her to use the preserved embryos for assisted reproduction.

(Rh/MF/MSM)