The Kerala High Court has allowed a widow to use embryos preserved during fertility treatment with her deceased husband, holding that the request could not be rejected merely because the hospital had obtained consent in a format different from the statutory Form 9.
Justice Harisankar V. Menon passed the order on September 1, 2026, in a writ petition concerning the use of cryopreserved embryos for assisted reproduction.
Background of the Case
The petitioner and her husband, Sreeraj, had undergone infertility treatment at SAT Hospital in Thiruvananthapuram. Embryos were cryopreserved, and the hospital had obtained a consent document from the couple.
After her husband’s death, the petitioner approached the hospital seeking to use the preserved embryos for an IVF procedure. The hospital declined to proceed, stating that specific written consent contemplated under Section 22(1)(a) of the Assisted Reproductive Technology (Regulation) Act, 2021, was required.
The petitioner argued that the consent already obtained amounted to substantial compliance with the law. The Union Government, however, pointed out that Form 9 specifically allows a husband to choose whether embryos should be handed over to his wife after his death. The consent obtained in this case did not contain that option.
Court’s Observation
The High Court examined Section 22 of the ART Act along with Rule 13 and Form 9 of the ART Rules, 2022. It noted that written informed consent of all parties is mandatory and that Form 9 provides three choices concerning embryos in the event of death: allowing them to perish, handing them over to the surviving spouse, or using them for research.
The Court found that the hospital should have required the couple to execute Form 9 when the ART procedure began. Instead, it had obtained a different consent document, which allowed the embryos to be used by “third party couples” but did not provide an option for their use by the surviving spouse.
The Court nevertheless held that the consent could not be viewed in isolation.
"The intention of the deceased was to ensure the ‘actual use’ of the embryos, and, therefore, the wish of the petitioner-wife to become a parent deserves to be respected."
The Court also took note of the Parliamentary Standing Committee’s observations concerning posthumous reproduction, including the relevance of inferred consent and the surviving partner’s interest in becoming a parent.
Decision
The High Court allowed the writ petition and directed SAT Hospital to permit the petitioner to use the preserved embryos of her deceased husband for assisted reproduction.
