Whether the father can claim right to sperm of his deceased son without consent of the wife of the dead?

Learned counsel relies on the parental

relationship of the petitioner and the deceased to assert

the petitioner’s right to collect such sperm, irrespective

of the permission of the wife of the deceased. In the

alternative, counsel submits, the respondent no. 4

ought to be directed to give her ‘no-objection’ or, at

least, to respond to the request of the petitioner.

However, the petitioner’s prayers have to be

refused on both counts.

As far as the alleged right of the petitioner to

collect such preserved sperm of his son, contrary to the

arguments advanced by counsel, the petitioner does not

have any ‘fundamental right’ to such permission,

merely by dint of his father-son relationship with the

deceased. 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, that is, the respondent no. 4. 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 nonexistent.

As far as the prayer for a direction upon the

respondent no. 4 to respond to the petitioner’s

communication is concerned, the same is beyond the

scope of the writ court, since the matter does not

involve any violation of fundamental or statutory right,

nor does the respondent no. 4 come within the

definition of ‘State’ as envisaged under Article 12 of the

Constitution of India.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

W.P.A. No. 4553 of 2020

Asok Kumar Chatterjee Vs. The Union of India & Ors.

Dated: 19-1-2021

The petitioner contends that the petitioner’s son

was a patient of Thalassaemia. While in matrimony

with the respondent no. 4, the said son died. During

his lifetime, the petitioner’s son had had his sperm

stored with the St. Stephen Hospital, Tis Hazari, New

Delhi. After the demise of the son, the petitioner

approached the said hospital for releasing such sperm

in favour of the petitioner on the ground that the

petitioner is the father of the deceased donor.

The Hospital, in its communication dated

January 19, 2019 (Annexure P-7 at page 26 of the writ

petition), disclosed, among other things, that the

further usage of sperm, that is, for providing pregnancy

to the donor’ wife, donation to someone else or

discarding, can be decided only after permission of the

patient’s wife (marriage proof required).

Upon such intimation, the petitioner urged the

respondent no. 4, being the wife of the deceased son, to

issue a ‘no-objection’ to the petitioner for collecting the

aforesaid sperm.

Learned counsel appearing for the petitioner

submits that the respondent no. 4 did not give any

reply to the said communication; rather, it is alleged

that, the respondent no. 4 refused to acknowledge the

receipt of the said communication.

Learned counsel relies on the parental

relationship of the petitioner and the deceased to assert

the petitioner’s right to collect such sperm, irrespective

of the permission of the wife of the deceased. In the

alternative, counsel submits, the respondent no. 4

ought to be directed to give her ‘no-objection’ or, at

least, to respond to the request of the petitioner.

However, the petitioner’s prayers have to be

refused on both counts.

As far as the alleged right of the petitioner to

collect such preserved sperm of his son, contrary to the

arguments advanced by counsel, the petitioner does not

have any ‘fundamental right’ to such permission,

merely by dint of his father-son relationship with the

deceased. 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, that is, the respondent no. 4. 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 nonexistent.

As far as the prayer for a direction upon the

respondent no. 4 to respond to the petitioner’s

communication is concerned, the same is beyond the

scope of the writ court, since the matter does not

involve any violation of fundamental or statutory right,

nor does the respondent no. 4 come within the

definition of ‘State’ as envisaged under Article 12 of the

Constitution of India.

Hence, the writ petition is not maintainable on

such score either.

Accordingly, W.P.A. No. 4553 of 2020 is

dismissed.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance of all necessary formalities.

(Sabyasachi Bhattacharyya, J.)

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