“The father-son relationship of the petitioner and the deceased does not involve any such right to the petitioner to the progeny of his son” said the Calcutta High Court.
On Tuesday, the Calcutta High Court had the chance to rule that a father has no “fundamental right” to claim his deceased son’s retained sperm solely because of the parental relationship.
The wife of the deceased man will have the first rights over the semen, Justice Sabyasachi Bhattacharyya said. “The father-son relationship of the petitioner and the deceased does not involve any such right of the petitioner to the progeny of his son. As such, the right defended by the petitioner for himself is ablutionary and non-existent.”
In this case, a man (petitioner) had been unsuccessful in his attempts to procure the sperm of his deceased son, which was stored at a Delhi hospital during the lifetime of his son. His son was a patient with thalassemia who was married at the time of his death.
The hospital had told the petitioner that it was only after securing the consent of the deceased donor’s wife that the further use of the semen, which was supposed to provide fertility for the donor’s wife or anyone else, could be determined.
Therefore, the petitioner moved the Calcutta High Court for relief, with his lawyer arguing he had rights over the retained sperm of his deceased son. However, Justice Bhattacharyya didn’t see any merit in the contention.
As far as the petitioner’s supposed right to receive his son’s stored sperm, according to the counsel’s claims, the petitioner has no ‘fundamental right’ to such permission, solely by dint of his father-son relationship with the deceased. The sperm preserved at the St. Stephen Hospital belonged to the deceased and, because the deceased was in a matrimonial relationship, it belonged to the wife of the deceased.
The Court continued to refuse the written appeal, after also refusing a prayer to direct the wife of the deceased man to no declaration of opposition with respect to the release to the petitioner of the retained sperm of her husband. The Judge found that this alternative prayer was within the jurisdiction of the Court of Justice since the case does not include any breach of a substantive or constitutional right, nor does the wife fall under the meaning of ‘State’ as provided for in Article 12 of the Constitution of India.