Can a woman be denied motherhood if the husband who earlier gave his sperm for an in vitro fertilisation (IVF) procedure now has withdrawn his consent and seeks divorce? This is a question posed by a Bengaluru woman before the Karnataka High Court.The 41-year-old woman has sought a direction for the Koramangala-based clinic to utilise her husband’s frozen sperm for IVF treatment. The woman had to approach the court because section 22 of the Assisted Reproductive Technology (Regulation) Act, 2021, mandates that clinics must not perform any treatment or procedure without the written, informed consent of all the parties seeking assisted reproductive technology.‘I cannot even have another donor’Mir Parveez Ahamed, who represented the woman in the court, argued, “My eggs and his sperm are with the clinic, and I am impaired without his consent. I cannot even have another donor, and I cannot use the husband’s sperm because of the consent mandated under law.”Pointing out the objective behind the ART Act, which has given hope to a multitude of infertile people, the counsel said, “This Act has created a lot of social and legal issues. This case before the court is also a social and legal issue, and the court should set a precedent where my right to have a child should be considered.”Ahamed also contended that consent was implied in the husband’s act of giving sperm for future IVF. “Thereafter, they have become an estranged couple. The implied consent to have a child was there at the time of giving the sperm. Does this consent given earlier, now withdrawn, stop me from having a child? Isn’t it against my right to motherhood?” he said.He sought that the woman be allowed to take another donor for fertilising her eggs.The woman’s petition states that it was a second marriage for both her and her husband. The husband from her first marriage has a child, while she is childless. After her marriage in 2022, she could not conceive and approached the IVF clinic. Six IVF treatments have already been done. They even applied to adopt a child.Story continues below this adHowever, disputes arose between them, and they started living separately after two years of marriage. The husband has filed a divorce petition on grounds of cruelty, which is at a nascent stage. Mediations have failed, and the family court is likely to adjudicate on the petition.Also Read | Can women beyond 50 years of age seek pregnancy through assisted reproductive technology, HC to decideCentral government’s standSadhana S Desai, appearing for the Central government, pointed out that only a commissioning couple or a widow or divorcee is eligible for ART under the Act.Desai said, “They have already approached as a commissioning couple. If their marriage is still subsisting and divorce has not come through, then she is not eligible under the ART Act. It will be travelling outside the scope of the Act if allowed. As of now, they are husband and wife in the eyes of the law.”Desai further submitted that the welfare of the child is one of the objectives of the Act.Story continues below this ad“The petitioner wants the marriage also and a donor. That is not contemplated in the Act. There has to be a power under which it can be granted.”High Court observationsA bench of Justice Suraj Govindaraj, on July 28, responded saying, “These are not purely legal issues so we can’t look at it technically; here is a situation where a divorce petition is filed by the husband, she is contesting it. These are problems which come up, and we need to solve them.” The court also observed that such situations may not have been foreseen while framing the enactment.Further, the court said, “The object of the Act is for the citizens. We know the system; how long a divorce matter can take; can she wait for that long a period?, the court remarked. “New issues keep coming; we will have to solve them and give them some recourse. Where they are not at fault.”Advocate Chinmay J Mirji appearing for the husband said, “The only concern is that now there is a wedlock and if a child is born the maintenance of the child and succession rights in property is a concern.”Story continues below this adThe bench asked the petitioner whether she would ask for maintenance and succession in the husband’s property for the child to be born, if permission was granted for the IVF.Ahamed answered in the negative and said, “I am also not asking for that for the child, but since we are married I would.” The husband’s counsel then sought time to seek instructions on the same if the wife was willing to file an undertaking to that effect.The bench then said, “We need to see that it is as per applicable law and how it will fit in.”Adjourning the hearing to August 18, the court directed the counsel for the petitioner to come back on provisions in other acts, if any, which could be relied on by her, in case the ART Act does not come to her rescue, due to the husband not consenting. The court also directed the Additional Solicitor General to appear before it on the next date of hearing, to address the issue raised in the petition.