Right to life includes prisoner’s right to procreate, says Delhi High Court

The right to life includes a prisoner's right to procreate, the Delhi High Court has held, as it granted a four-week parole to a 41-year-old murder convict so that he can father a child through medical procedures.

Justice Swarana Kanta Sharma said a convict does not become a lesser citizen just because of his incarceration.

The prisoner petitioned that he wanted to have a child with his 38-year-old wife with the help of medical procedures.

The judge noted that the "biological clock" of the convict and his partner may become a barrier for them to conceive once his prison sentence got over.

So, the fundamental right to have a child "cannot be deemed to be surrendered in favour of the State", she said.

"Delay in having a biological child would mean curtailing this fundamental right to parenthood, due to incarceration of a convict. The right to procreate, in this court’s opinion, survives despite incarceration, in certain set of facts and circumstances of a given case, as the present one," Justice Sharma said in a recent order.

"This court has no hesitation to hold that right to life under Article 21 of the Constitution of India will include right of a convict to have a child when he is not blessed with a biological child by being extended the relief of grant of parole for this purpose where he needs medical assistance and the biological clock due to his age may weaken and make prospects of having a child bleak," the court said.

Legal conditions

The judge, however, added that the right to procreation was not absolute and had to be studied by taking into account factors like the prisoner's parental status and age among other factors.

In the present case, the petitioner was in prison for 14 years and sought parole saying he and his wife wanted to protect their lineage.

For this, he would have to undergo certain medical tests in order to have a child through in vitro fertilisation (IVF).

"It is a personal choice and fundamental right of an individual, though a convict, and his wife who is a free citizen to have a child together for protecting and saving their lineage which must be respected by a court of law," it said.

"The definition of fundamental rights and its expansion cannot be caged in narrow formulas of black and white letters and its duty and beauty lies in interpreting it with broader point of view as the faith of the common man in the judicial system is on the broad shoulders of the courts of law of Bharat," added the judge.

The court said the petitioner be released for four weeks on parole subject to a personal bond of Rs 20,000 and a surety of the like amount and some other conditions.

(With agency inputs)