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A very interesting question has been raised before the Honorable High Court of Karnataka. Whether right to conceive is a fundamental right under Article 21 of the Constitution? A Writ Petition under Article 226 of the Constitution of India has been filed before High Court of Karnataka challenging the denial of “In Vitro Fertilization  (IVF), which is a form of Assisted Reproductive Technology (ART), by utilizing the Petitioner’s deceased husband’s sperms that have been kept with a private IVF Center, which is the Respondent in the case.

            Briefly, the facts of the case, as narrated by the Petitioner’s Counsel to his Lordship Honorable Justice A.S. Bopanna on 27th August 2013, when the matter came up for preliminary hearing before Court, are as follows: The Petitioner, a woman, along with her husband had visited an IVF Center for assisted conception through IVF. The sperm samples of the husband were collected by the IVF Center and were frozen and stored in the Center  Before the further procedure was carried out, unfortunately the husband died. Later, the woman approached the IVF Center requesting them to proceed with IVF by using the sperm samples of her husband frozen and stored at the IVF Center  The IVF Center refused to proceed with IVF as according to them, as per their policy, both Husband and Wife have to consent to it.

Aggrieved by the refusal to proceed with the IVF by the private IVF Center in view of the death of the Husband, the wife who was inclined to conceive and give birth to a child using her deceased Husband’s sperm, filed a Writ Petition under Article 226 of the Constitution of India. The Advocate appearing for the Petitioner during the course of his arguments tried to convince the Court that “Right to Conceive” is a Fundamental Right under Article 21 of the Constitution. It is relevant to note that Article 21 of the Constitution of India, which guarantees protection of life and personal liberty as a fundamental right, provides that “No person shall be deprived of his life and personal liberty except according to procedure established by law.” The expressions “life” and also “personal liberty” has been given wider meaning by the Supreme Court of India to include various other human rights. This judicial expansion of meaning of the expressions “life” and “personal liberty” has been so extensive that scholars have referred to Article 21 as the repository of human rights. The Petitioner’s Counsel referred to the ICPD (International Conference on Population Development) and argued that Access to Reproductive and Sexual Health Services and Family Planning (RSH & FP) have been recognized as Human Rights and India has been part of the ICPD. Therefore he argued that “right to conceive” would fall under Article 21.

This case has raised a very curious question, which interests both the legal scholars and the SRHR activists. Along with this question, as the Respondent in this case is a private IVF Center  there was a question on the ‘maintainability of the Writ Petition’ itself which was discussed during the course of the hearing. Writ Petitions are usually intended against the ‘State’ which includes the Government and its instrumentality  The disputes between the private parties have to be resolved by approaching the appropriate Civil Court for the enforcement of rights. However, it is to be noted that Article 226, which defines the Writ Jurisdiction of the High Courts in India, empowers every High Court to exercise Writ Jurisdiction in respect of “...any person or authority including in appropriate cases, any Government....” Having said that, it is for the Court to decide whether the instant Writ Petition is maintainable?

The Court, after hearing the Counsel appearing for the Petitioner, thought it fit to keep the question of maintainability open and has issued notice to the Respondent to appear before it.

Now, we have to wait and watch whether the High Court takes the stand that the Writ Petition is maintainable or will it direct the parties to approach the appropriate Civil Court for adjudication of the dispute. In either case, this case has the potential of bringing in some new development in Sexual & Reproductive Health Rights Jurisprudence of the Country.

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