The Karnataka High Court is examining whether a married woman can undergo IVF using donor sperm to preserve her right to motherhood while divorce proceedings initiated by her husband are still pending.

The matter came up before Justice Suraj Govindaraj after a woman approached the Court seeking permission to conceive through IVF. The couple had earlier stored their eggs and sperm at an IVF clinic after several unsuccessful attempts to conceive naturally. However, after the husband filed for divorce, he withdrew his consent for the use of his stored sperm, preventing the IVF process from moving forward under the Assisted Reproductive Technology (Regulation) Act, 2021.

During the hearing on July 28, the Court made it clear that it cannot compel the husband to allow the use of his sperm. At the same time, it questioned whether the law permits an alternative solution, such as donor sperm, to safeguard the woman's right to become a mother.

"This is not purely legal. We can't look at it technically. These are newer technologies which keep coming. There are newer issues. We have to try and solve the problem and give them some recourse," Justice Govindaraj observed.

Appearing for the petitioner, advocate Parveez Ahamed MR submitted that both parties were in their second marriage and had undergone seven to eight IVF cycles without success. While the husband already has a child from his previous marriage, the petitioner remains childless.

The counsel argued that the woman's reproductive window is limited and prolonged divorce proceedings could permanently deprive her of the opportunity to have a biological child.

"By the time the divorce proceedings conclude, I might lose my last chance," the petitioner's counsel submitted.

He further contended that if the husband refuses consent for the use of his sperm, the petitioner should at least be permitted to conceive through donor sperm.

Opposing the plea, the husband objected to the proposal. The Court then sought clarification on whether his objection was limited to the use of his own sperm or extended to his estranged wife becoming a mother through donor-assisted conception.

"What is the problem? Wife having a child with your sperm or from a donor?" Justice Govindaraj asked.

The Bench also suggested that if donor-assisted IVF were permitted before the divorce is finalised, the husband could be protected from any legal, financial or parental obligations arising from the birth of the child.

Addressing the petitioner's counsel, the Court observed that the woman would have no claim against the husband for maintenance, property or any other legal rights in relation to the child. It also indicated that suitable directions could be issued to ensure the child would not have succession or maintenance claims against the husband.

The husband's counsel sought time to obtain instructions from his client regarding the Court's proposal.

Representing the Union government, Assistant Solicitor General Sadhana Desai argued that the ART Act currently permits IVF only for commissioning couples and eligible single women in specified circumstances. Since the parties remain legally married, she submitted that the petitioner cannot independently undergo donor-assisted IVF under the existing statutory framework.

The ASG further cautioned that permitting such relief without legislative backing could create legal complications relating to parentage, birth registration and other issues under the ART and surrogacy laws.

"I totally understand that there is a very urgent requirement, but it should be backed by some provision of the statute," she submitted.

Justice Govindaraj acknowledged that technological advancements often present issues that existing laws do not specifically address.

"These are newer technologies which keep coming. New issues keep coming up. How do we solve that? As a policy matter or by interpretation? We'll have to try and solve the problem and give them some recourse," the judge remarked.

However, the Court stressed that any relief ultimately granted must remain within the framework of the law. It also encouraged both parties to explore an amicable settlement before adjourning the matter for further hearing.