Court allows widow to use embryos preserved with late husband despite consent gap

The Kerala High Court allowed a widow to use embryos frozen with her late husband for IVF, holding that his intention to use them outweighed a technical consent-form lapse.

In Short

• Court prioritised deceased husband's intention over hospital's flawed consent paperwork
• Hospital form lacked an option naming wife beneficiary after death
• Central government argued ART Rules required explicit posthumous spousal consent

The Kerala High Court has allowed a widow to use embryos frozen and preserved with her late husband to undergo IVF, holding that his intention to ensure the embryos were used could not be defeated by a technical lapse in the consent form.

Justice Harisankar V Menon passed the order after the woman approached the court when the hospital where she and her husband had undergone infertility treatment refused to hand over the embryos without explicit written consent authorising their use by her after his death.

The woman told the court that her husband had consented to the use of the embryos during their treatment. However, the hospital contended that the consent form indicated that the embryos could be given to an unknown couple and did not specifically name the woman as the beneficiary.

The Centre also opposed her plea, arguing that the consent required under the Assisted Reproductive Technology (Regulation) Rules, 2022, for the wife to use the embryos after her husband's death had not been given.

The High Court, however, found that the hospital's own consent form did not provide an option for handing over the embryos to the wife, unlike the statutory Form 9 prescribed under the ART Rules.

The court said that when the hospital's consent form was read alongside the statutory form, the circumstances indicated that the deceased husband intended for the embryos to be used after his death.

Justice Menon held that the hospital's decision to use its own consent form instead of the statutory format could not be used to deny the woman's request.

The court observed that the deceased's intention was to ensure the “actual use” of the embryos and said the woman's wish to become a parent deserved to be respected.

It accordingly directed the hospital to allow the widow to use the preserved embryos for assisted reproduction.

- Ends