The embryos were frozen while the husband was alive. After his death the widow sought to use them, but the hospital said the consent it had taken did not contain the option, required by the statutory form, for handing the embryos to the surviving spouse. The Kerala High Court held that the hospital’s failure to use the correct form could not be turned against the widow, and that the husband’s expressed wish that the embryos be used meant his request should be respected.
Kochi: The Kerala High Court has directed a hospital to allow a widow to use the cryopreserved embryos of her deceased husband for assisted reproduction, holding that the hospital’s failure to obtain consent in the statutory form could not be used to defeat her request, and that the husband’s intention had been that the embryos be put to actual use [Priya Sreeraj v. Union of India and Others].
Justice Harisankar V. Menon allowed the writ petition, directing the fourth respondent hospital to permit the petitioner to use the preserved embryos.
The background
The petitioner and her husband had been undergoing infertility treatment, in the course of which embryos were cryopreserved during his lifetime. At the time of cryopreservation the hospital obtained a consent letter from the couple. The husband died in 2021.
When the widow later sought to use the embryos for an IVF procedure, the hospital declined, informing her that unless a specific written consent referable to Section 22(1)(a) of the Assisted Reproductive Technology (Regulation) Act, 2021 was available, the procedure could not continue. She approached the High Court for a direction to release and allow her to use the embryos.
The consent problem
Section 22 of the ART Act makes the written informed consent of all parties a mandatory precondition to any procedure, and Rule 13 of the 2022 Rules requires consent for freezing embryos to be given in the prescribed Form 9. That form asks the husband to record, against three options, what he wishes to happen to the embryos in the unforeseen event of his death: that they perish, that they be handed over to his wife, or that they be used for research. The same three options are provided for the wife.
The difficulty was that the hospital had not used Form 9. The consent it took instead, described in the judgment as Ext.P3, contained no option for the surviving spouse to use the embryos. It offered a different set of choices, under which the husband had opted to permit the use of the embryos by an unknown or third-party couple, the alternatives being use for research or letting the embryos perish.
For the Union and the hospital, the Central Government Counsel argued that because the husband had not chosen the “handed over to the wife” option, which the consent did not even contain, he must be taken never to have wanted his wife to use the embryos, and that granting the prayer would be against his will. It was further submitted that posthumous reproduction raised ethical, social and legal questions, including about the widow’s possible remarriage and the inheritance of property.
How the Court read the consent
The Court held that the fault lay with the hospital, not the widow. When the procedure was commenced, it observed, the hospital ought to have insisted that the couple execute the consent in Form 9; instead it collected a differently worded consent that omitted the surviving-spouse option altogether. The contention that the husband had not wanted his wife to use the embryos arose only because that non-standard consent had been taken.
Reading the consent that had been taken together with the statutory form, the Court drew an inference about the husband’s intention. Of the options open to him, he had chosen to have the embryos actually used, rather than allowing them to perish or confining them to research. Reading that choice alongside Form 9, where the corresponding option is to hand the embryos to the surviving spouse, the Court held that it could only be assumed that the husband wanted the embryos used for a meaningful purpose after his death.
On that footing, the Court concluded that the widow’s request could not be disallowed merely because the hospital had chosen to collect a consent outside the statutory format.
Inferred consent and the partner’s interest
The Court drew support from the 129th report of the Department-related Parliamentary Standing Committee on Health and Family Welfare, which had considered the ethical and legal difficulties of posthumous retrieval of gametes. The Committee had taken the view that posthumous reproduction should be permitted even in the absence of the deceased’s prior consent, unless the person had previously objected or there were strong indications that they would not have agreed, and that the deceased’s inferred consent and the surviving partner’s interest in becoming a parent should be weighed rather than the matter being decided solely on autonomy and bodily integrity.
Reading that alongside Section 22, the Court held that it was the deceased’s inferred consent and the partner’s interest in becoming a parent that required the utmost consideration. Having found that the husband’s intention was to ensure the actual use of the embryos, it held that the widow’s wish to become a parent deserved to be respected, and allowed the petition.
Why it matters
The judgment is among the first in India to apply the consent provisions of the ART Act to a request for posthumous reproduction, and the way it did so is instructive. The statute makes written informed consent mandatory, and the natural reading of a strict consent requirement is that its absence is fatal. The Court avoided that outcome not by diluting the requirement but by placing responsibility for the defective consent where it belonged, on the clinic that failed to use the prescribed form, and by refusing to let the clinic’s own lapse be used against the very person the consent regime exists to serve.
The reasoning on inferred intention is the more delicate part, and it will be watched. The Court did not hold that consent is unnecessary; it held that where the man chose to have his embryos used rather than destroyed, the absence of the specific surviving-spouse option, missing because the wrong form was used, could be filled by inference in favour of use by the wife. That is a benevolent construction, and its limits will matter in future cases: it is one thing to infer intention where the deceased affirmatively wanted the embryos used, and another where the record is silent or points the other way. The Standing Committee’s formulation, which the Court adopted, itself builds in that limit by excepting cases where the person objected or would clearly not have agreed.
The wider questions the Union raised, about remarriage, inheritance and the interests of the resulting child, are real and the Court did not pretend they were not, but it treated them as considerations that the Standing Committee had already weighed in favour of permitting posthumous reproduction on inferred consent, rather than as bars. Those questions are likely to return in cases with less favourable facts, and a fuller framework for them may have to await either the rules being applied as written or an appellate court’s consideration. For this widow, the immediate effect is that the embryos preserved during her husband’s life may now be used, and her wish to become a parent has been allowed.
Case Title: Priya Sreeraj v. Union of India and Others [WP(C) No. 22457 of 2025]
Bench: Justice Harisankar V. Menon, High Court of Kerala at Ernakulam
Date of Judgment: September 1, 2026 | Neutral Citation: 2026:KER:66664
Appearances: Advocates B. Renjithkumar and Clara Sherin Francis for the petitioner. Central Government Counsel K. Arjun Venugopal for the Union and the National ART and Surrogacy Board. Government Pleader Dinesh Thankappan for the State.
Status: Writ petition allowed. Hospital directed to permit the petitioner to use the preserved embryos for assisted reproduction.