The Kerala High Court has granted relief to a 43-year-old widow by ruling that she is entitled to use the frozen embryos she and her late husband preserved during his lifetime. The hospital had previously refused to release the embryos, citing a lack of explicit written instructions regarding the husband's wishes after his death.
Flawed Consent Form and Legal Hurdles
The couple had undergone fertility treatment at a hospital in Thiruvananthapuram, where their embryos were cryopreserved. Following her husband's death, the woman sought to use the embryos for In Vitro Fertilisation (IVF), reports Bar and Bench. Kissing Child's Pen*s Constitutes Penetrative S*xual Assault: Kerala High Court.
However, the hospital declined the request, pointing out that the consent document signed by the couple only offered three scenarios if either spouse died: utilisation by an unknown couple, use for research, or destruction. None of the options explicitly covered handing the embryos over to the surviving spouse, and the husband had originally opted for them to be used by an unknown couple. The hospital and the Central government opposed the widow's plea, arguing that proceeding without specific authorisation violated Section 22(1)(a) of the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), which mandates strict written informed consent under designated formats like Form 9.
Court Observations on Inferred Consent
Justice Harishankar V. Menon noted that the hospital itself had failed to provide the statutory Form 9, which mandates an explicit choice for transferring embryos to a surviving spouse. Instead, the institution utilised a deficient form. The Court observed that the records clearly indicated the husband intended for the embryos to be put to actual use rather than destroyed, establishing an "inferred consent". Emphasising that procedural gaps by medical facilities should not block a citizen's reproductive rights, the bench held that the surviving partner's interest in parenthood must be respected. Muslim Man Having S*x With Minor Wife Liable Under POCSO Act: Kerala High Court.
"It is specifically found that it is the 'deceased’s inferred consent' and the 'partner’s interest' in becoming a parent that require the utmost consideration. As has been found, the intention of the deceased was to ensure the ‘actual use’ of the embryos, and, therefore, the wish of the petitioner-wife to become a parent deserves to be respected," the Court held. Consequently, the High Court set aside the hospital's refusal and directed authorities to release the cryopreserved embryos to the petitioner for assisted reproduction.
(The above story first appeared on LatestLY on Sep 14, 2026 11:02 PM IST. For more news and updates on politics, world, sports, entertainment and lifestyle, log on to our website latestly.com).
