Calcutta High Court: Deceased’s Wife Has the Sole Right Over His Preserved Sperm; Father Doesn’t Have Any Fundamental Right Over Son’s Progeny Without the Prior Permission of Such Wife.

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

The Calcutta High Court dismissed the petition by the Petitioner (father) on 19th January 2021, on the account of his parental relationship with the deceased son, sought permission to collect preserved sperm of the deceased, irrespective of the permission of his wife.

Facts of the case:

The Petitioner (Ashok Kumar Chatterjee, father) contended before the Court that his deceased son was a patient of Thalassaemia. Meanwhile, in matrimony with respondent no. 4 (wife of deceased), he died. 

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During his lifetime, the deceased had his sperms stored with the St. Stephen Hospital, Tis Hazari at New Delhi. After the demise of the son, the Petitioner (father) approached the said hospital for releasing his son’s sperm in his favor on the account that he is the father of the deceased donor. 

However, the Hospital communicated (January 19, 2019, Annexure P-7 at page 26 of the writ petition) that further decisions about the usage of sperm, that is, for providing pregnancy to the donor’s wife, a donation to someone else or discarding, could be decided only after prior permission of the patient’s wife (marriage proof required).

Petitioner’s arguments: 

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The Petitioner after such intimation from the Hospital authorities of the required permission of the deceased’s wife for releasing his son’s sperm, pleaded with the wife of his deceased son to issue a ‘no-objection’ certificate to him for collecting the aforesaid sperm. But she did not send any reply to the said communication.

Thus, the petitioner, relying upon the parental relationship between him and the deceased, asserted his legal right to collect such sperm from the Hospital authorities, even without the prior permission of the wife of the deceased.

Court’s Observations: 

The Hon’ble Court remarked that The sperm preserved at the St. Stephen Hospital belonged to the deceased son and, since the deceased was in a 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. The Court further observed The father-son relationship between 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 non-existent.

The Court also held that issuing a direction upon the deceased son’s wife to respond to the petitioner’s communication was beyond the scope of the writ jurisdiction of the court, since the matter does not involve any violation of fundamental or statutory right, nor does the wife comes within the definition of ‘State’ as envisaged under Article 12 of the Constitution of India. 

Judgment:

The Hon’ble Justice Sabyasachi Bhattacharyya ruled that the Petitioner (Father of the deceased) does not have any ‘fundamental right’ to such permission of releasing the deceased’s sperm, merely by dint of his father-son relationship with the deceased.

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Hence, the Hon’ble court held that the writ petition was not found to be maintainable on such score either, and accordingly, the plea was dismissed. 

Click here to view the judgment. 


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