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The Struggle of Bloodlines and Frozen Gametes:

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Abstract

The nucleus of any civilization lies in bonds, in the family. ‘Familia Ante Omnia’, a Latin phrase meaning family over everything sets out the core need of mankind to establish links and form associations to support one’s needs, emotional and otherwise. India is not averse to this, the importance Indian society chairs for a family is not something that rests in oblivion having policies centred around the preservation of familial structures, incorporating power hierarchies, providing safeguard policies for women against ménage violence and providing for children as well indicates to the sheer significance family holds in our society. Children and childbearing are essential for the preservation of a family line.

This paper aims to indulge in the latent knowledge expanse of retrieval of male gametes from his cadaver, succeeding bloodlines posthumously, the lack of legislation to supervise a safe procedure, legitimacy etc. The authors employ doctrinal research and survey method to understand what less is known regarding artificial insemination and the impact it has on the medico-legal community. Posthumous or Post Mortem Sperm Retrieval (PMSR) should be treated analogously to In Vitro Fertilisation (IVF), having specific and significant legislations to avoid misuse and abuse.

Keywords- posthumous sperm retrieval, IVF, medico-legal, legislations

Introduction

Guidelines set out by the Indian Council for Medical Research (ICMR)[1] provides for posthumous artificial insemination (by) husband through sperm banks. Indian law codifies this concept under the Indian Evidence Act, 1872, which declares the legitimacy of a child born within 280 days- gestation period- after the dissolution of marriage, by death or by divorce. It is apposite to note that an Act enacted centuries ago foresaw the presence of assisted reproductive technology (ART) and provided for it in writing. The Assisted Reproductive Technology (Regulation) Act, of 2021, came into force for the regulation and supervision of ART clinics and banks, preventing its misuse, for ethical and safe practice.

Posthumous Sperm Retrieval (PSR) is a process where ART is applied to form pregnancy for the conception of a genetic offspring after the death of a parent. The procedure of microsurgical epididymal sperm aspiration (MESA) is performed by a surgeon or a urologist, to extract seminal fluids from the optimal areas of the epididymis. The usage of spermatozoa for impregnation has substantial discourse over the legality and ethics surrounding the procedure and the legal rights of the surviving parent and the child.

Methods

For this paper the authors apply doctrinal and survey methods for the deduction of information and understanding the grey areas of an underexplored knowledge cluster. The study population consisted of individuals from various professions, mainly targeting doctors and legal professionals. An online survey was made and shared. A total of 41 participants responded to the questionnaire.

Results

A total of 41 participants responded to the questionnaire. Results showed 9.8% in the medical field and 31.7% of legal professionals having slight knowledge regarding posthumous sperm retrieval. The lack of awareness and legislations plays a prominent role in creating gaps regarding use, misuse and prevention thereof.

Conclusion

Posthumous Sperm Retrieval and Assisted Reproductive Technology is not a subject meant for concealed and hushed conversations but one which deserves the exchange of dialogues and mainstream conversation. The legal system and the judiciary need to take notice of these changes and make dynamic laws for a dynamic society.

Discussion

PMSR and ART are seemingly new-age concepts which find legislative roots in an Act enforced two centuries ago, Indian Evidence Act, 1872 (IEA). IEA provides for the legitimacy of a child born within 280 days of the dissolution of marriage either by death or divorce. Law needs to evolve parallel with the medical advancements which have taken place over the years. Due to the lack of guidelines, it becomes difficult to set a conversation concerning the legal validity of such a procedure.

The genesis for these procedures stem from the emotional vulnerability of an individual having, untimely, lost their loved ones. PMSR and ART are subjects covered in literature but ones not covered by the national directive. Retrieving spermatozoa posthumously would help a widowed spouse whose husband met sudden death conceive their own child. These procedures could help preserve bloodlines and provide emotional support to the bereaved family provided the bereft spouse consents to it.

Hypothesis

  1. Is there a need to enhance provisions concerning posthumous sperm retrieval and assisted reproduction technology?
  2. What would be the impact of PMSR and ART on the medico-legal society?

Results

  1. Is there a need to enhance provisions concerning posthumous sperm retrieval and assisted reproduction technology?

Freezing of viable embryos by women is something done through the years, popularised by celebrities and public figures opting for a delayed pregnancy, parallel to this, freezing of sperms sounds unheard of and almost an alien process. The lifespan of male gametes outside the human body is of mere few minutes, while sperms inside a dying person or a dead body can be extracted within 24 hours and motile sperms have been successfully retrieved as late as 36 hours. The retrieved spermatozoa can then be frozen and used by his partner or wife at a later stage to produce his genetic offspring. This process of freezing the sperms of a corpse or dying person for a delayed pregnancy is called Posthumous or Post Mortem Sperm Retrieval

Procedures of PMSR and ART come as an aide to bereft spouses and partners. PSR or Post Mortem Sperm Retrieval is a process of obtaining viable sperm posthumously. The retrieved sperm is then frozen which can be used by his spouse to induce pregnancy. ART or Assisted Reproductive Technology are medical procedures which address infertility. It involves procedures such as intracytoplasmic sperm injection (ICSI), IVF, cryopreservation of embryos and gametes and fertility medication. While ART is a codified statute under the Assisted Reproductive Technology (Regulation) Act of 2021, PMSR remains a discussion known only to a few. The guidelines drafted by the ICMR in 2010 are the only rules present regarding ART. The ART clinics allow a woman to conceive by her spouse’s sperms. However, he should be alive, and in good health to harvest sperm.

The presence of PMSR in our society is well known but due to the lack of regulations and legislations, neither the proper usage nor the stakeholders of such a biotechnology boon are made known to the general public. Out of the 41 responses recorded in an independent survey conducted by the authors, 82.9% were unaware of PMSR and 29 individuals responded in favour of PMSR and IVF. We concluded that along with the absence of concrete legislations, lack of awareness plays a significant role[2].

The very first case of PMSR was reported way back in the year 1980 in the US, that a 30-year-old man’s family sought sperm preservation after he was declared brain dead. This was the first successful sperm salvage from a corpse. In India, even though there is an absence of legislations PMSR is practiced.  In 2016, the widow of a young man who died untimely requested the doctors at AIIMS to extract sperms from her husband’s corpse so she could get pregnant, but her request was denied as PMSR regulations in India were vague. In 2018, the parents of a 27-year-old unmarried man declared brain dead in Germany, had grandchildren by surrogacy (deceased’s aunt) using the cryopreserved semen of their son. Though experts raised questions on the ethics of the procedure, being an altruistic surrogacy, this came under the ambit of the ART Act and in 2021, the Calcutta High Court[3] ruled that only the wife has rights over the deceased’s frozen semen.[4]

Posthumous Sperm Retrieval and Assisted Reproductive Technology are hushed conversations in India currently. The lack of specific legislations for PSMR provides no barrier to its practice. The legislature needs to expound and elaborate the bounds of PMSR and ART; place explicit legislations and safeguards for it in India, but these should come along with adequate counselling for widowed women as their vulnerability is susceptible to concealed emotional and social pressures.

  • What would be the impact of PMSR and ART on the medico-legal society?

Indian Evidence Act, 1872 provides for the legitimacy of a child born within 280 days after the dissolution of a marriage, PMSR and ART create an opportunity for the woman to be artificially inseminated by the frozen sperms of her deceased. With this overlap of medical and legal, it’s about time that law takes notice of the changes that were set in motion two centuries ago. The need for PMSR and ART primarily stems from the emotional anguish the widow of the deceased faces. This vulnerability is susceptible to abuse in the absence of proper procedures and guidelines, stakeholders, legal representation and grief counselling.

Stakeholders

Addressing the interested parties or the stakeholders would aide in placing liability, holding them responsible in face of abuse, misuse or mishap.

  • Deceased person: The interest of the departed should be given primal importance, whether it is his will to procreate and have an offspring, giving consent, if possible, to collect his semen posthumously if he so wishes to have a child.
  • Requesting parties: Sibling, spouse or parent of the person form the interest of the requesting parties. It is difficult to decipher self-interest from the emotional turmoil they present, whether the posthumous retrieval is for fiscal or legal benefits. In the case of Hecht vs. Superior Court[5] where reasonable doubt was raised on economic interest, the court pondered on sperm ownership.
  • Physician: A physician is a vital person in the PMSR procedure. They must specify the conditions under which the sperms would be harvested and its security after retrieval is crucial. Though PMSR is not a necessary medical procedure the physician is to respect the deceased’s right to procreate and guarantee the safety of the specimen, mother and foetus, preventing the spread of diseases or infection, conducting intensive screening before insemination

Medical Status

Cases involving Posthumous Sperm Retrieval present a medical ethics puzzle, one which involves the legality of sperm harvesting and the risk of disregarding a deceased person’s body and their right to autonomy. From an emotional and religious standpoint, cutting, opening and inspecting a corpse is frowned upon; however, medical procedures and instructions are carried out in a way to be respectful and does not disregard the dead or their autonomy. Section 3.16.5 of the “Guidelines for ART Clinics in India” drafted by ICMR are the only guidelines available in India. These afford for artificial insemination (by) the husband (AIH) after his death, provided, the sperms ought to be collected while the husband is alive and sane.

Legal validity

IEA provides for the legality and the legitimacy of a child born within 280 days of dissolution and provisions under the ART Act and Draft Bills provide for the legitimacy of a child born to commissioning couples, unmarried male or female and posthumous AIH. Under the guidelines by ICMR, sperm must be cryopreserved for six months before insemination. It also states that the donor sperm- to avoid any venereal disease- be quarantined for six months. The Indian Succession Act[6] excludes a child born through ART and provides only for the inclusion of a child through adoption and natural-born, indicative that a child born through methods of ART is ineligible to inherit and considering the time taken for reproduction under ART the offspring born would be considered legally illegitimate. Considerable changes should be brought into legislations to grant children conceived of posthumous AIH the legitimacy and legal validity they deserve. Law is a dynamic force thereby it needs to cloak the garment of transformation as society changes with time, age and technology.

The only glitch which persists in acknowledging the presence of these methods and new-age biotechnology in Indian society is awareness. The lack of awareness and the zero means taken for its propagation makes it a cluster of knowledge known and accessible only by a few.

Conclusion

We live in a century where change is constant and dominant; nothing remains the same as it was minutes ago. The same is applicable in the medical field where day by day newer advancements, treatments and medicines are formulated and made just to provide a solution for the never-ending battle individuals lead against life. Bearing a child and having a family is centric to any human being and us being social animals many a time we tend to form reliability on blood than societal relations. PMSR and ART are new-age procedures which aide in procreation for those who are widowed and for those struggling with fertility. The fact that posthumous procurement of sperms and artificial insemination can help a woman become pregnant is mesmerising. With these humongous advancements being made in the medical profession it is about time the legal system and the judiciary take notice of these changes and make dynamic laws for a dynamic society.

Throughout this research and the survey the authors conducted, it’s indicative of the sheer lack of awareness, of the existence of these biotechnological innovative procedures, is fascinating. Codified and solid laws and legislations regarding PMSR and ART could become a bridge, closing the gaps within the medico-legal community. These legislations should have appropriate penalties, in place to avoid and prevent abuse, requisite for the proper implementation of this medical boon. Posthumous Sperm Retrieval and Assisted Reproductive Technology is not a subject meant for concealed and hushed conversations but one which deserves the exchange of dialogues and mainstream conversation so that the ones left behind are not left bereft.

Acknowledgement

The authors acknowledge and value the participation and understanding of all the responders in this survey and study. Your honest responses aided us in our research.

Table 1: Pie–chart representing the responders from different fields

Table 2: Pie-chart representing the lack of awareness

References

  • Journal/Articles
  • K. Tumram, N. and V. Bardale, R. (2019) “Postmortem Sperm Retrieval and Assisted Reproduction: Issues without Solutions?”, Arab Journal of Forensic Sciences & Forensic Medicine, 1(9), p. 1231. doi: 10.26735/16586794.2019.009.
  • Evans, Jon B. (2016) “Post-mortem Semen Retrieval: A Normative Prescription for Legislation in the United States,” Concordia Law Review: Vol. 1: No. 1, Article 6. Available at: https://digitalcommons.csp.edu/clr/vol1/iss1/6
  • Sikary AK, Murty OP, Bardale RV. Postmortem sperm retrieval in the context of developing countries of the Indian subcontinent. J Hum Reprod Sci. 2016;9(2):82-85. doi:10.4103/0974-1208.183510 
  • Manu, M. and Anand, G. (2022) “A review of Medical Device Regulations in India, comparison with European Union and way-ahead,” Perspectives in Clinical Research, 13(1), p. 3. Available at: https://doi.org/10.4103/picr.picr_222_20.
  • Nofar Yakovi Gan-Or, Men, Fatherhood, and the Regulation of Assisted Reproduction in Israel, International Journal of Law, Policy and the Family, Volume 36, Issue 1, 2022, ebac020, https://doi.org/10.1093/lawfam/ebac020

Authors:

Aradhana Singh1, Cheryl Betsy Mathew2,

Manubha Shankar3

  1.  LLM Student at Kalinga University, Raipur, Chhattisgarh, India
  2.  LLM Student at Kalinga University, Raipur, Chhattisgarh, India
  3. LLM Student at Kalinga University, Raipur, Chhattisgarh, India

[1] Chapter 3, Code of Practice, Ethical Considerations and legal practice, 3.16.5

[2] https://forms.gle/L1DTemXvWtHMo5nZ7

[3] Stuti Rakesh Painter vs State of Gujarat 2021 SCC OnLine Guj 1085

[4] Asok Kumar Chatterjee vs. The Union of India & Ors., W.P.A. No. 4553 of 2020

[5] 16 Cal. App. 4th 836

[6] Schedule III rule 5

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