THE RIGHT TO POSTHUMOUS REPRODUCTION: AN ANALYTICAL JURISPRUDENTIAL PERSPECTIVE

Abstract

Posthumous reproduction, the conception of a child using the cryopreserved gametes of a deceased individual, has moved from medical possibility to a matter of active constitutional and statutory concern in India following the Delhi High Court's decision permitting the parents of a deceased man to retrieve and use his preserved semen sample. This paper examines the doctrinal basis on which Indian courts have located a right to posthumous reproduction within Article 21 of the Constitution, situating that development within the broader jurisprudence of living constitutionalism through which the Supreme Court has read penumbral rights into the guarantee of life and personal liberty. It surveys the fragmented character of India's statutory framework, under which neither the Assisted Reproductive Technology (Regulation) Act, 2021 nor the Surrogacy (Regulation) Act, 2021 expressly addresses posthumous use of gametes, and compares this regulatory gap against the more developed statutory regimes of France, Germany, Australia, Switzerland and the United Kingdom. Drawing on comparative jurisprudence from Israel, the United Kingdom, Canada, Australia and the United States addressing consent, the proprietary status of reproductive material and the emergent category of posthumous grandparenthood, the paper argues that judicial recognition of the right, while constitutionally sound, has proceeded without the statutory guardrails, particularly around consent, that comparative practice shows to be necessary. The paper concludes that India requires targeted legislative amendment to the ART Act and the Surrogacy Act to codify consent requirements, define the class of persons entitled to seek posthumous use of gametes, and establish time limits for decision-making, so that the right the judiciary has recognised operates within a predictable statutory framework rather than case-by-case constitutional adjudication.