Redefining Legal Parenthood: Lacunae in the Assisted Reproductive Technology (ART) & Surrogacy Acts Regarding Posthumous Reproduction, Embryo Custody, and Inheritance Rights

*Mohona Chowdhury & Rajan Chaudhary

As society progresses, people's needs and requirements evolve. To keep up with the same, laws also need to evolve accordingly.  India’s dual reproductive legislation - the Assisted Reproductive Technology (Regulation) Act, 2021 (“ART Act”) and the Surrogacy (Regulation) Act, 2021 (“Surrogacy Act”), marks a shift from a regime governed largely by non-binding, voluntary guidelines issued by the Indian Council of Medical Research (ICMR) and occasional judicial intervention, to one anchored in statute, aimed at standardising ethics and curbing commercial exploitation by formalising legal parentage for children born through technological intervention. Despite the enactment, gaps remain in the statutory framework that we cannot disregard. Neither act accounts for a basic fact of modern reproductive medicine: cryopreservation lets conception occur years after a genetic parent's death, a divorce, or the end of a marriage, well past the point at which the law still assumes parentage is fixed, and this temporal separation is precisely what generates the disputes this article examines. This article examines three such grey areas: posthumous reproduction, embryo custody on marital breakdown, and the succession rights of posthumously conceived children, and argues that Parliament must mandate written post-mortem directives, recognise binding pre-treatment disposition agreements with limited judicial review, and adopt liberal, non-marital eligibility criteria, failing which courts will keep improvising answers Parliament has left open, at the cost of prolonged legal uncertainty.

Legislative architecture and heteronormative barriers of the dual legislation

The ART Act regulates fertility clinics, gamete banks, donor screening, consent and gamete handling, while the Surrogacy Act regulates gestational surrogacy and works towards altruistic surrogacy under strict conditions. Eligibility under both statutes, however, is narrowly defined in terms of a subsisting marriage. As per Section 2(1)(h) of the Surrogacy Act, a  “ couple” is a legally married Indian man and woman, above 21 and 18 years of age respectively, who intend to become parents through surrogacy. Section 4(iii)(c)(I) separately prescribes the age bracket within which such a couple may actually undertake surrogacy - 23 to 50 years for the woman and 26 to 55 years for the man. Access for single women is available only if the woman falls between the ages of 35 and 45 and is either widowed or divorced. Single men, unmarried heterosexual couples, live-in partners, and LGBTQ+ people are all unfairly excluded and denied access to surrogacy. This exclusion raises a genuine constitutional question. In  K.S. Puttaswamy v. Union of India (2017), the Supreme Court specifically recognised reproductive autonomy as part of the right to bodily autonomy protected under Article 21, and in Devika Biswas v Union of India, it recognised the right to make reproductive choices, including the choice to procreate, as part of Article 21. The exclusion of the LGBTQ community is equally unconstitutional. In Navtej Singh Johar v Union of India and in the NALSA judgment, the court repeatedly affirmed reproductive autonomy as an inviolable part of Article 21 for the queer community as well. In a recent case, Hari Devageeth v Union of India, Kerala High Court allowed a transgender man to cryopreserve his eggs under the ART act but only by construing ‘woman’ to include him based on reproductive function, effectively holding that his right to reproductive autonomy trumped his right to be recognised as a man under Section 4 of the Transgender Persons (Protection of Rights) Act, 2019 as read in NALSA and Supriyo v Union of India. The case highlights why Parliament must adopt inclusive ART legislation, rather than leaving courts to reconcile conflicting rights case-by-case.

Recent legal developments on Posthumous Reproduction and Genetic Property Rights

Posthumous reproduction is the use of the gametes or pre-made embryos from an individual even after their death. As neither the ART Act nor the Surrogacy Act in India provides clarity on this issue, the High Courts in India address this by interpreting constitutional rights, principles of personal property, and jurisprudence from other countries.

A pivotal judgment addressing this statutory vacuum was rendered by the Delhi High Court in Gurvinder Singh and Anr. v. Government of NCT of Delhi and Ors. (2024). Justice Pratibha M. Singh held that posthumous reproduction is not statutorily prohibited where the gamete provider's consent can be proven and was satisfied on the facts that such consent had been obtained. The court treated the cryopreserved semen as part of the deceased’s estate, to which his parents, as Class I heirs, were entitled. It also pointed out that there is no statutory prohibition in the ART or Surrogacy Acts and recommended a specific framework by the Ministry of Health.

This verdict, though a welcome interim solution, raises problems of its own. Treating gametes as inheritable property sits uneasily with the anti-commercialisation philosophy of both the ART and Surrogacy Acts, and risks conflating two distinct questions. The right to possess or inherit a person's stored genetic material is not the same as the right to exercise reproductive autonomy using that material, which implicates the deceased's own choice about becoming a parent. Inheritance answers who holds the sample; it cannot, without more, answer whether an heir may authorise its use for reproduction. This was not an issue for Gurvinder Singh since the independent evidence showed the deceased’s consent. In the absence of such evidence, allowing the heirs to authorise reproduction would threaten the deceased's reproductive autonomy under Article 21. This is precisely the gap a mandatory written post-mortem directive would close. It would let the deceased’s own wishes, rather than an heir’s assumed entitlement to the estate, govern whether reproduction may proceed at all.

A more recent and doctrinally distinct order was passed by the Bombay High Court on 25th June, 2025 in the case of Sakshi Rajan Patekar v. State of Maharashtra (June 2025). The deceased, a 21-year-old unmarried man, had preserved his semen before his cancer treatment, and instructed the clinic to discard the sample after he passed away. After the clinic and the Union Ministry of Health rejected his mother’s request for release, she approached the High Court. Justice Manish Pitale gave ad-interim relief against the order of destruction of the sample pending adjudication. Unlike Gurvinder Singh, the order did not give any substantive rights of reproductive use; it only allowed the reservation of the sample until the court decided whether the recorded will of the deceased can be superseded by the claim of his mother as the sole legal heir. The matter remains pending.

Read together, these judgments show that the courts are quite sympathetic to reproductive and family rights on humanitarian grounds, but proceeding without a settled consent mechanism, limitation period, and the legal status of any child born after the procedures are agreed to requires legislative, not judicial resolution.

The consent conundrum and the legal disputes regarding Embryo custody

The most concerning issue in posthumous reproduction is informed consent. Consent for freezing (cryopreservation) during life differs from consent to use of a person's genetic material after death. While Indian courts must construct answers on a case-by-case basis, other jurisdictions offer clearer models. The UK's Human Fertilisation and Embryology Act 1990 permits posthumous gamete use only with the deceased's prior, signed written consent, the rule behind R v. HFEA, ex parte Blood (1997), later modified procedurally by the 2003 Act. California follows an intent-based property model. Hecht v. Superior Court (1993) recognised stored sperm as a property interest capable of testamentary disposition. Israel takes a presumed-intent approach, with 2003 Attorney-General guidelines permitting sperm retrieval based on evidence of the deceased's wishes, even in the absence of written consent. In India, Section 22 of the Assisted Reproductive Technology (ART) Act, which addresses informed consent, does not make post-mortem consent the specific requirement. This leads courts to determine what a person intended, which in turn creates legal ambiguities.

India also has no legal framework governing unused embryos after divorce. Section 28 of the ART Act sets storage standards for embryos, and Section 22 governs informed consent, but neither addresses disputes between commissioning partners after separation. Comparative approaches, such as Davis v. Davis (1992), show that this need not remain unaddressed; the Tennessee Supreme Court held that embryos deserve special respect and that any prior agreement between the parties should generally be honoured before a court resorts to balancing their competing interests. Without comparable guidance, Indian clinics also remain exposed to liability whichever course they take when parties disagree, precisely the gap a binding pre-treatment disposition agreement, of the kind this article recommends, is designed to close.

Succession law and the child conceived after death

Another significant lacuna lies in the succession law. In the Hindu Succession Act, 1956, Section 20 gives recognition only to the child in the womb before the father's death and remains silent about the children who are born after the father's death through the ART procedure. Therefore, the Parliament should amend Section 20 and the corresponding provisions of other personal succession statutes, to expressly recognise the inheritance rights of a child conceived posthumously through ART within a defined limitation period.

Enforcement gaps and their bearing on consent-based disputes

Although Sections 21, 23, 27, and 31 make strict record-keeping, donor limits, and other procedural regulations mandatory, investigations have revealed that lapses in gamete handling and embryo tracking remain unaddressed.

There have been many cases of embryo mix-ups and unauthorised use of biological material, exposing serious deficiencies in labeling protocols and audit mechanisms. In 2023, the National Consumer Disputes Redressal Commission fined a Delhi hospital ₹1.5 crore after sperm from an unapproved donor was used without a couple's knowledge, and directed clinics to issue DNA profiles of newborns. More recently, a Gurugram couple's DNA test revealed no biological link to their IVF-born twins, leading to an FIR and a health-department raid that recovered dozens of embryos from an unlicensed clinic in the same city.

The ART Act does penalise unauthorised sourcing or mixing of gametes. Section 33 of the Act prescribes imprisonment and a fine of up to ₹25 lakh. But the absence of mandatory digital audit trails and standardised consent forms means that the underlying record-keeping on which post-mortem and custody disputes ultimately turn remains only as reliable as individual clinics choose to make it.

Conclusion and suggestions

This regulatory framework is commendable and much-needed, but as long as these gaps remain unaddressed, it will fall short of its own objectives. Targeted reforms are needed to close these statutory lacunae and reduce the judicial uncertainty they currently generate.

First, the ART Act should make the written post-mortem directives mandatory so that it is clearly articulated to whom the gamete and embryos will belong after the death and whether they will be used or not. The consent mechanism should also be made stringent.

Second, the ART Act should recognise binding pre-treatment embryo disposition agreements subject to limited judicial review to help resolve future disputes arising out of their custody.

Third, the narrow definitions provided in the ART Act should be given a liberal interpretation to expressly include unmarried men, live-in partners and, most importantly, the LGBTQIA+ community within their purview.

Judicial decisions offer useful temporary relief but cannot substitute for far-reaching legislative change. Explicit statutory rules on posthumous consent, amended personal succession laws, clear consent rules for embryo disposition, and wider eligibility access could together establish a modern reproductive legal regime that balances medical innovation, personal rights, the welfare of children, and constitutional liberty.

Editorial Note: For readers interested in a more detailed examination of the legal issues surrounding the disposition of embryos following divorce, including the statutory framework under Sections 22 and 28 of the ART Act, the absence of a clear mechanism for resolving post-divorce embryo disputes, and comparative approaches to reproductive autonomy and consent, we recommend reading our related piece, “Whose Embryo Is It Anyway? Section 22(4) and the Missing Law of Post-Divorce Embryo Disposition.”

[Read the full article here- https://www.centreforfamilylaw.com/post/whose-embryo-is-it-anyway-section-22-4-and-the-missing-law-of-post-divorce-embryo-disposition]

 *Mohona Chowdhury is a practicing Advocate at Calcutta High Court.

*Rajan Chaudhary is an LL.M. Student at National Law University, Jodhpur with a Specialisation in Corporate Law.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.