Kerala HC Directs SAT Hospital to Release Cryopreserved Embryos to Widow for IVF Despite Non-Standard Consent Form

The Kerala High Court held that a hospital's failure to obtain the statutory Form 9 consent cannot deprive a widow of access to her deceased husband's cryopreserved embryos for assisted reproduction.

A 43-year-old woman from Alappuzha sought access to embryos cryopreserved jointly with her late husband, who died on 31 March 2021, to pursue an IVF procedure. SAT Hospital, Thiruvananthapuram — where the couple had undergone infertility treatment — refused to proceed without a consent document compliant with Section 22(1)(a) of the Assisted Reproductive Technology (Regulation) Act, 2021. On 1 September 2026, Justice Harisankar V. Menon, sitting singly at the High Court of Kerala at Ernakulam, allowed the writ petition and directed SAT Hospital to permit the petitioner to use the preserved embryos for assisted reproduction. The judgment turned on whether a non-statutory consent form collected by the hospital at cryopreservation could be read against the widow when the hospital itself had failed to use the prescribed Form 9.

The Dispute Before the Court

Priya Sreeraj and her husband Sreeraj K.K. were undergoing infertility treatment at SAT Hospital. On 22 December 2022, the hospital cryopreserved embryos produced during the course of that treatment and obtained a consent document from the couple, marked Ext.P3 in these proceedings. After her husband's death, Priya Sreeraj sought to use those embryos for IVF. The hospital declined. It told her that Section 22(1)(a) of the ART Act mandates written informed consent of all parties, and that no such consent specifically authorising posthumous use by the wife was available.

The petitioner then filed WP(C) No. 22457 of 2025 before the High Court. She was represented by Advocates B. Renjithkumar and Clara Sherin Francis. Respondents 1 and 2 — the Union of India and the National ART and Surrogacy Board — were represented by Central Government Counsel K. Arjun Venugopal. The State of Kerala was represented by Government Pleader Dinesh Thankappan. SAT Hospital was the fourth respondent.

What Ext.P3 Said — and What Form 9 Required

The legal friction arose from a mismatch between what Ext.P3 contained and what the ART Act's prescribed Form 9 requires.

Section 22(1)(a) of the ART Act makes written informed consent of all parties a mandatory precondition for any assisted reproductive technology procedure. Rule 13(1)(f)(iv) of the Assisted Reproductive Technology (Regulation) Rules, 2022 operationalises this by requiring consent for freezing of embryos to be provided in Form 9. Form 9 expressly asks the husband to state, in the “unforeseen event of my death,” whether he would like the embryos to perish, be handed over to his wife, or be used for research purposes. A corresponding provision exists for the wife.

SAT Hospital did not use Form 9. Instead, it collected Ext.P3 — a consent form that offered three different options to the couple: use of embryos by an unknown couple, use for research purposes, or allowing the embryos to perish. Ext.P3 contained no option for the surviving spouse to use the embryos. The deceased husband had opted, under Ext.P3, for use by an unknown couple — the option signifying that he wanted the embryos to be put to actual use.

The Union of India argued from this that the husband had affirmatively chosen a route that excluded his wife. Since he had ticked the “unknown couples” box rather than a spousal-use option, the government submitted that granting the wife's request would be contrary to the deceased husband's expressed wish. The government also flagged ethical, social, and inheritance-related concerns noted in the counter affidavit filed on its behalf.

The Court's Reasoning on Consent and Compliance

Justice Menon began by accepting that Section 22(1)(a) is a mandatory provision. But he then focused on where the deficiency originated. The court found that SAT Hospital, as the ART clinic conducting the procedure, ought to have insisted on the couple executing the consent in Form 9 at the time of cryopreservation. It chose not to do so and collected Ext.P3 instead.

The court then read Ext.P3 alongside Form 9 to assess what the deceased husband's actual intention was. Under Ext.P3, the husband had three options: use by an unknown couple, use for research, or allowing the embryos to perish. He chose the first — use by an unknown couple. Under Form 9, the equivalent set of options includes, as the second option, handing the embryos over to the surviving spouse.

The court reasoned that the husband's selection of the “actual use” option under Ext.P3 — as against letting the embryos perish or directing research use — aligned with the second option under Form 9, which is spousal use. The court concluded that when Ext.P3 is read together with the Form 9 framework, “it can only be assumed that the husband wanted the wife to use the embryos after his death, as even as per Ext.P3, he wanted the same to be used for a meaningful purpose.”

Against that reading, Justice Menon held that the wife's request could not be refused simply because the hospital had chosen to collect Ext.P3 instead of the statutory Form 9. To disallow the petitioner's claim on that basis would, in the court's view, penalise the widow for the hospital's own lapse in procedure.

The Parliamentary Committee's Observations on Posthumous Reproduction

Counsel for the petitioner also relied on paragraph 4.17.12 of the 129th Report of the Department-related Parliamentary Standing Committee on Health and Family Welfare, which was placed before the court as Exhibit R1(A) by the Union of India itself.

That paragraph addressed the ethics of posthumous retrieval and use of gametes. The Committee observed that posthumous reproduction should be permitted even in the absence of prior consent, unless the deceased had previously objected or there were strong indications that the person would have disagreed. It recommended that decisions to prohibit posthumous reproduction should not rest solely on principles of autonomy and bodily integrity, and that the deceased's inferred consent as well as the partner's interest in becoming a parent must be weighed.

The court drew on this observation to frame the interpretive purpose of Section 22 of the ART Act. It found that the provision was intended to protect the deceased's inferred consent and the surviving partner's interest in parenthood, not to create a technical bar arising from a clinic's administrative failure. The deceased had plainly wanted the embryos to be used. The petitioner-wife had a legitimate interest in becoming a parent. Both factors, the court held, pointed in the same direction.

The Delhi High Court's judgment in WP(C) No. 15159 of 2021 dated 4 October 2024 — which had permitted the parents of an unmarried deceased male to use preserved semen — was cited by the petitioner's counsel. The Union of India distinguished that case on its facts, arguing it was decided in a specific factual context. The Kerala High Court did not rest its decision on that precedent, instead grounding the outcome in its reading of Ext.P3, Form 9, and the Parliamentary Committee's report.

Outcome

Justice Harisankar V. Menon allowed WP(C) No. 22457 of 2025 on 1 September 2026. The court directed SAT Hospital — the fourth respondent — to allow the petitioner, Priya Sreeraj, to use the preserved embryos of her deceased husband for the purpose of assisted reproduction.