A couple in India say they are “delighted” after a court ordered a hospital to hand over their dead son’s frozen semen sample to them so they can have a grandson through surrogacy.

The historic order of the Delhi High Court came after a four-year legal battle.

“We were very unlucky, we lost our son. But the court has given us a very valuable gift. Now we will be able to get our son back,” mother Harbir Kaur told the BBC.

Ms Kaur and her husband Gurvinder Singh petitioned the court in December 2020 after Delhi’s Ganga Ram Hospital refused to release their son’s semen, which was stored in its fertility laboratory.

The couple’s 30-year-old son, Preet Inder Singh, was diagnosed with non-Hodgkin’s lymphoma – a form of blood cancer – in June 2020 and was admitted to the hospital for treatment.

“Before starting chemotherapy, the hospital advised him to store his semen because the treatment could adversely affect the quality of his sperm,” Gurvinder Singh told the BBC.

Preet Inder, who was unmarried, agreed and his sample was frozen on 27 June 2020. He died in early September.

A few months later, when the grieving parents asked for access to their son’s frozen sperm, the hospital denied their request. After this the couple filed a petition in the Delhi High Court.

The couple, both in their 60s, told the court they would parent any children born using their son’s semen sample. At the same time, in the event of his death, both his daughters have given an affidavit in the court that they will take full responsibility of the child.

In her order last week, Justice Prathiba Singh said that “under Indian law, there is no restriction on posthumous reproduction if the sperm owner has given consent”.

He said the parents are entitled to the sample because in the absence of a spouse or children, they become the legal heirs under the Hindu Succession Act.

The couple say they approached the court because they wanted to carry on his “legacy” and that the order would help them maintain their relationship with him and continue their family name.

“He loved his sisters very much and his friends also loved him very much. That’s the screensaver on my phone. I start my day every morning by seeing his face,” said Ms Kaur. She did not want to share any photos of her with the BBC due to privacy concerns.

He said the family was considering using his sperm in surrogacy and one of his daughters had agreed to be the surrogate. “We’ll keep it in the family,” she said.

His lawyer Suruchi Aggarwal told the BBC that the case was rare, but not without precedent.

In court, he cited 2018 case A 48-year-old woman in the western Indian city of Pune got twin grandsons through surrogacy using the semen of her 27-year-old son, who died of brain cancer in Germany.

Her son, who was unmarried, had authorized his mother and sister to use his semen after his death and the hospital in Germany had handed over his sample to them.

Ms Agarwal also gave example A 2019 case where the New York Supreme Court allowed the parents of a 21-year-old military cadet who died in a skiing accident to use his frozen sperm to produce a grandson.

In his order, Justice Singh also cited several cases of posthumous reproduction, including a 2002 case in Israel, where the parents of a 19-year-old soldier killed in Gaza used their son’s sperm to produce a child. Legal permission to use was obtained. A surrogate mother.

So if there is a precedent, why did the hospital deny the couple’s request?

As Justice Singh said in his order, there is no international consensus on this issue.

The US, UK, Japan, Czech Republic and some other countries allow posthumous reproduction with written consent. Australia imposes an additional one-year waiting period to allow time for emotions to cool after the death.

The practice is banned in several countries such as Italy, Sweden, Switzerland, France, Malaysia, Pakistan, Hungary and Slovenia, while most of India’s South Asian neighbors – Sri Lanka, Nepal, Bhutan and Bangladesh – have no guidelines.

And even in countries where there are laws on posthumous reproduction, most cases involve spouses who want to use frozen eggs or sperm to conceive.

The number of bereaved parents seeking their sons’ sperm has increased israelAnd as the conflict with Russia has escalated, semen cryopreservation has been provided to soldiers in Ukraine for free. But in India, it is still relatively rare.

In court, Ganga Ram Hospital said that legally they can release the sample only to the spouse. He said there are no clear laws or guidelines that govern the release of semen samples of an unmarried deceased male to his parents or legal heirs.

The Indian government also opposed the couple’s petition, saying that surrogacy laws in India are meant to assist infertile couples or women, and not those who want to have grandchildren.

Officials also revealed that Preet Inder was unmarried – of India Assisted Reproductive Technology (ART) Act 2021 Prevents single people from having children through surrogacy – and he had given no written or verbal consent for the use of his frozen sperm, so his parents did not have the automatic right to use it.

The couple’s lawyer Ms Aggarwal argued in the court that while filling the form to store his semen, Preet Inder had clearly specified that it was for the purpose of IVF.

He told the BBC that the form contained the mobile numbers of both father and son, which implied consent. She explained that the father was paying the laboratory to preserve the sample.

The ART Act was brought in to prevent commercial use of surrogacy, regulate and supervise clinics, and not to encroach on the personal liberty of intended parents, he said.

Justice Singh agreed with Ms Agarwal’s argument that Preet Inder had given consent to have his sperm used for the purpose of producing a child.

“He was not married and had no partner. Their intention was to use this sample to give birth to a child. When he passed away, the parents are the heirs of the deceased, and semen samples constitute genetic material and property, the parents are entitled to release it.

Under those circumstances, the court said they could not prevent the couple from accessing their son’s semen sample.

Ms Kaur says the court order has provided her with a “ray of hope, a light” that “we will be able to get our son back”.

“I have prayed every day to fulfill all the unfulfilled wishes of my child. It took four years, but my prayers have been answered,” she adds.