X v. Union of India & Others, 2026

The petitioner and her husband were undergoing fertility treatment and IVF procedures at a hospital.

During the husband's lifetime, embryos were created and cryopreserved for assisted reproduction.

The husband subsequently died in 2021.

After his death, the petitioner sought permission from the hospital to use the cryopreserved embryos for assisted reproduction.

The hospital refused to permit their use, stating that specific written consent under Section 22 of the ART Act was not available for continuing the procedure after the husband's death.

The petitioner argued that the couple had already provided written consent at the time of cryopreservation.

She contended that the existing consent amounted to substantial compliance with the statutory consent requirement.

The petitioner also relied upon the 129th Report of the Department-related Parliamentary Standing Committee on Health and Family Welfare, which had discussed posthumous collection and use of reproductive material.

Reliance was also placed on a Delhi High Court decision concerning the use of preserved semen of a deceased person.

The Union Government drew attention to Form 9 under the ART Rules, 2022.

Form 9 requires consideration of what should happen to preserved embryos in the event of the death of a spouse.

The Court noted that the statutory framework contemplates three broad choices:

• Allow the embryos to perish;

• Hand over the embryos to the surviving spouse; or

• Use the embryos for research purposes.

The Court found that the hospital had not required the petitioner and her husband to execute the prescribed Form 9 and had not provided them with these specific choices.

The husband had nevertheless given written consent permitting the embryos to be used by an unknown couple in the event of his death.

The Court considered this consent important in determining the husband's intention regarding the future use of the embryos.

The Court therefore examined whether the deceased husband's consent, together with the petitioner's desire to become a parent, justified allowing her to use the embryos.

The Kerala High Court allowed the writ petition.

The Court directed the concerned hospital to permit the petitioner to use the preserved embryos for assisted reproduction.

The Court examined Section 22 of the ART Act, the 2022 Rules and Form 9 together.

The Court observed that the statutory framework requires the parties to consider the fate of the embryos in the event of the death of either spouse.

The Court identified the three options contemplated under the framework: destruction/perishing of the embryos, handing them over to the surviving spouse, or use for research.

The Court found that the hospital had not obtained Form 9 from the couple.

Since the hospital itself had not provided the prescribed choices, the absence of such a form could not be treated as an absolute bar against the petitioner's request.

The deceased husband had expressly consented to the use of the embryos by an unknown couple in the event of his death.

The Court inferred from this that the deceased intended the embryos to be actually used rather than allowed to perish.

The Court also considered the surviving wife's interest in becoming a parent.

Taking these circumstances together, the Court permitted the petitioner to use the cryopreserved embryos.

The judgment deals with the complex issue of posthumous use of cryopreserved embryos.

The central consideration was the intention and consent of the deceased husband.

The Court did not treat the absence of Form 9 as automatically ending the petitioner's claim.

Instead, it examined the actual written consent given by the deceased at the time of cryopreservation.

The husband's willingness to allow an unknown couple to use the embryos demonstrated that he contemplated continued use of the embryos even after his death.

The Court therefore inferred that his intention was not for the embryos to be destroyed or left unused.

The judgment highlights the importance of informed consent documentation in assisted reproduction.

Hospitals and ART clinics have an important responsibility to ensure that the consent procedure prescribed by law and the Rules is properly followed.

The Court's reasoning also recognises the surviving spouse's interest in parenthood and reproductive autonomy.

However, the decision is closely connected to the specific facts and evidence of the husband's consent in this case.

It does not establish that every surviving spouse automatically has an unrestricted right to use cryopreserved embryos after the death of the other spouse.

The case illustrates the need for clear advance instructions concerning the storage, transfer, destruction, research use and reproductive use of embryos.

The judgment may have significant implications for IVF clinics, fertility hospitals, cryopreservation agreements and future disputes involving posthumous reproduction.

It also demonstrates the interaction between statutory consent requirements and individual reproductive choices.