Right to Procreate is part of Convict’s Right to Life: Delhi High Court

The Delhi High Court ruled that a convicted murderer has the right to procreate, even though he is serving a life sentence. The convict, 41, was granted four weeks of parole so that, with the aid of certain medical procedures, he and his 38-year-old wife could become parents.

In the present case, where the convict and his partner’s “biological clock” may become a barrier for them to conceive once the sentence got over, Justice Swarana Kanta Sharma said that a convict does not become a lesser citizen only because of his incarceration and that the fundamental right to have a child “cannot be deemed to be surrendered in favour of the State.”

“Because a convicted person is imprisoned, delaying having a biological child would mean restricting this fundamental right to parenthood. In a recent ruling, Justice Sharma stated that under certain facts and circumstances of a particular case, such as this one, the right to procreate survives despite incarceration.

“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 stated.

The court made it clear that it was not considering whether to grant parole in order to preserve marriage and marital rights, but rather a prisoner’s fundamental right to receive the treatment needed in order to become a parent in accordance with jail regulations.

The right to procreate is not unassailable and must be evaluated by considering a number of factors, such as the prisoner’s age and parental status. A just and fair approach can be taken to maintain the delicate balance between individual rights and broader societal considerations.

In the current case, the petitioner had served 14 years in prison and requested parole on the grounds that he and his spouse wished to preserve their family heritage, necessitating a number of medical examinations before he could become a parent through in vitro fertilization (IVF).

The couple’s age, the court noted, suggested that their worry that their biological clock would not stop until their jail sentence ended was legitimate, and that wanting biological children was a “human tendency.”

“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 Courts of law of Bharat,” added the court.

The court added that a convict’s right to parenthood and procreation is a fundamental right under certain circumstances, noting that the “judiciary in Bharat has always stubbornly refused to hold that prisoners have no fundamental rights”

The petitioner was granted a four-week parole period by the court, contingent upon a personal bond of Rs 20,000, one surety of the same amount, and a few other requirements.

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