The central government on Tuesday said that a woman can use her husband’s sperm for an in vitro fertilisation (IVF) procedure only with his consent and cannot use donor sperm unless the husband is proved infertile.
The submission was made in the Karnataka High Court while opposing a Bengaluru woman’s plea for a direction for a clinic at Koramangala to utilise her estranged husband’s frozen sperm for IVF treatment.
Additional Solicitor-General Aravind Kamath said, “As long as she is in marriage, she cannot use his sperm without his consent and cannot take donor sperm. The only choice left to the petitioner is to do it as a single woman.”
The woman has approached the court because section 22 of the Assisted Reproductive Technology (Regulation) Act mandates that clinics must not perform any treatment or procedure without the written, informed consent of all the parties seeking assisted reproductive technology.
After the couple’s marriage in 2022, she could not conceive and approached the IVF clinic. Six IVF treatments have already been done. When they were together, they froze their gametes (sperm and eggs). However, disputes arose between them, and they started living separately after two years of marriage. The husband has filed for divorce on the grounds of cruelty. The divorce petition is at a nascent stage.
‘Give divorce, or he will not give consent’
The husband’s counsel, Chinmay J Mirji, contended that a child born using third-party sperm while the couple remains married may still be considered “born out of wedlock”, which could give him rights to claim his properties—affecting not only him but also the child from his previous marriage.
Mir Parveez Ahamed, who represented the woman, countered these submissions. “Their concern is only in respect of property, nothing else. He is putting a gun to my head and saying, give divorce or he will not give consent,” he said.
Ahamed reiterated before the court that the woman was willing to give an undertaking that no claim would be made on behalf of the child on the properties of the husband or his joint family. He also said the woman was not willing to give divorce to the husband, stating that the possibility of restitution could not be ruled out, during mediation proceedings pending before the family court.
Justice Suraj Govindaraj termed it a Catch-22 situation. “Can you (the woman) give an undertaking on behalf of the unborn child? Can we pass an order on that basis?” he asked.
The judge further observed, “That is why the act required both the husband and wife to give consent and makes an exception for a widow or divorce. Legislation has probably thought of it, and this issue has been examined. That is how it is restricted. This issue cannot be sorted out today as to what will happen 22 years down the line when the child could make a claim.”
Ahamed then said, “Where do I go, Milord? Is giving divorce the only option for me to become a mother?
Justice Govindaraj then said, “If you want to take benefit of the Act, you have to take it as it is, not as you want it to be.”
The bench adjourned the hearing to August 20, directing the woman’s counsel to place on record possible interpretations of law and provisions that could further her cause.
