Whose Embryo Is It Anyway? Section 22(4) and the Missing Law of Post-Divorce Embryo Disposition
- Raunak Dixit & Nishant Tripathi
- 14 minutes ago
- 7 min read
*Raunak Dixit & Nishant Tripathi
Introduction
Consider a married couple who have undergone in-vitro fertilisation and thereby produced six cryopreserved embryos. Two of these embryos are transferred and the marriage is subsequently dissolved before the remaining embryos are used. One spouse wishes for the embryos to be destroyed and the other wishes for them to be used. The parties are unable to reach any compromise between these two positions. The question that arises is which of these two positions is to be preferred under Indian law. This question has not yet arisen for decision in India, although it has been the subject of litigation in Tennessee, New York, Arizona and the United Kingdom, as well as before the European Court of Human Rights.
That is not to say Indian law is silent. Section 22(4) of the Assisted Reproductive Technology (Regulation) Act, 2021 (“ART Act”) provides that either member of a commissioning couple may withdraw consent at any time before transfer. However, the Act fails to mention is what a court must then do with a vetoed embryo. The missing piece in Indian law is disposition, not consent.
An Orphaned Right: Section 22(4) Without a Disposition Rule
The ART Act regulates the creation and storage of embryos closely. Section 22 requires the written informed consent of all parties before any procedure and forbids clinics from cryopreserving embryos without written instructions covering the death or incapacity of a party. Section 22(4) then permits any member of the commissioning couple to withdraw that consent at any time before the embryo is transferred to the woman's uterus. The provision therefore requires consent to subsist throughout, and not merely at the outset and it places India, on paper, alongside the United Kingdom rather than alongside the American contract jurisdictions.
The difficulty is what the Act does not say. Section 28 caps storage at ten years, at the end of which the embryo is to be allowed to perish or be donated for research with the consent of the commissioning couple. Donation to another infertile couple, the very remedy an American court ordered in Terrell v. Torres, is not available in India at all. That bar is now before the Delhi High Court, where a Bench of the Chief Justice D K Upadhyaya and Justice Tejas Karia issued a notice to the Central Government in January and gave it six weeks to respond. The Act is also drafted around a “commissioning couple”, defined as an infertile married couple approaching a clinic together, which leaves it doubtful whether two divorced people remain the persons whose consent Section 28 requires.
So a withdrawal under Section 22(4) stops the treatment and settles nothing else. Neither party can use the embryo. No forum is named and no remedy is specified, while the ten-year clock keeps running, at the end of which the statute disposes of the embryos on everybody's behalf. The spouse who wants nothing done wins by waiting.
Why No Other Branch of Law Fills the Gap
No other body of Indian law supplies a ready category. An embryo is not property capable of transfer under Section 5 of the Transfer of Property Act, 1882, which contemplates a conveyance between living persons, and it is not a person in the constitutional sense prior to transforming into a foetus. The clinic consent form is an ordinary contract under the Indian Contract Act, 1872, and its enforceability has never been tested by an Indian court in this context. A family court would consequently be left reaching for Section 27 of the Hindu Marriage Act, 1955, a provision written for property presented at or about the time of marriage, not to resolve a dispute over whether a human life is to be created at all. That mismatch is not confined to Hindu couples, since Muslim, Christian and Parsi personal laws contain no equivalent.
What Other Jurisdictions Do After the Veto Bites
Every one of these systems has had to decide what happens once consent fails. Each of these systems has been required to determine what follows once consent fails. India has not yet addressed that question. Tennessee balances, when Junior Davis and his former wife fell out over seven cryopreserved embryos in Davis v. Davis, the Supreme Court of Tennessee weighed their competing interests and held that, absent a prior agreement, the spouse wishing to avoid procreation ordinarily prevails, unless the other has no reasonable alternative route to genetic parenthood. In New York, Kass v. Kass enforced the couple's written agreement and refused to let a later change of heart displace it.
Arizona has adopted both approaches, and its legislature has since displaced them. Ruby Torres underwent in-vitro fertilisation before beginning chemotherapy, on being told treatment would leave her infertile, under an agreement requiring both parties' consent to any later use. On divorce she sought the embryos as her only prospect of genetic motherhood. In Terrell v Torres, the Supreme Court of Arizona enforced the agreement and directed their donation to another couple. Section 25-318.03 of the Arizona Revised Statutes, enacted in 2018, reverses that logic, awarding disputed embryos to the spouse who will bring them to birth notwithstanding any agreement, and severing the objector's parenthood. Being prospective, it could not assist Torres.
The United Kingdom sits closest to India. Either gamete provider may withdraw consent up to implantation, a right the Court of Appeal confirmed in Evans v. Amicus Healthcare Ltd and the Grand Chamber upheld in Evans v. United Kingdom in 2007. Natallie Evans had had her ovaries removed after tumours were found, the stored embryos were her last chance of a genetically related child, her former partner withdrew his consent, and the embryos were destroyed. The rule operates harshly, but its content is certain. India has adopted the same rule without adopting the consequential machinery that accompanies it.
The Objection That Matters
The Kass objection, that the clinic form should simply be enforced as a contract, has little purchase in India, where such forms say nothing about what happens if the parties later diverge. There is a better objection, and this proposal must answer it.
A veto that is symmetric on paper is not symmetric in practice. Fertility treatment costs the woman her time and her body, and Section 21(g) of the ART Act closes the door on her at fifty while leaving it open to a man until fifty-five. Add matrimonial litigation, in which everything becomes a bargaining counter, and the veto begins to look like a weapon. A recent commentary in LiveLaw argues that spousal consent under Section 22 operates as reproductive coercion by design where cruelty or domestic violence proceedings are already pending. There is a doctrinal version of the same complaint. If the Supreme Court could hold in Arun Muthuvel v. Union of India that, for age-limit purposes, the process begins when the embryo is frozen, why should the only consent that counts be the consent given years afterwards?
Two concessions are owed to that argument. Firstly, the bodily integrity strand of the pregnancy cases does not carry over, because nobody's body is invaded when a stored embryo is implanted in another woman. Secondly, the objector's interest is accordingly weaker here than in the abortion cases. What survives is decisional autonomy, which Suchita Srivastava v. Chandigarh Administration located within personal liberty under Article 21 of the Constitution and Justice K.S. Puttaswamy v. Union of India entrenched as a facet of privacy. The Delhi High Court has since read the ART Act purposively in the light of both.
None of that is a reason to abandon the veto. It is a reason to give the deadlocked spouse somewhere to go. India should keep contemporaneous consent as the general rule and add the exception Davis carved out, letting a family court permit use where the embryo is the applicant's only remaining route to genetic parenthood. Evans refused to recognise that exception, so the departure would be deliberate, and it is defensible on one condition. The statute must sever the objector's legal parenthood at the same time, as the Arizona provision does. What is imposed is then a genetic fact and not a family.
What Reform Should Look Like
The instrument already exists. The ART Rules make consent a precondition to freezing under Rule 13, taken on Form 15 for embryos and Form 16 for gametes, and Form 15 is where their intentions ought to be recorded. It should carry a disposition clause, signed by both intending parents at the point of freezing, saying who may claim the embryo if the marriage ends first and whether storage or perishing is the default when they cannot agree. Donation to another couple cannot be offered as an option until the statutory bar now before the Delhi High Court is removed.
The clause must operate as a rebuttable starting position, since Section 28 conditions perishing on consent given at the point of disposition, which is a separate and later step from consent given at freezing. Two further amendments are needed. A family court should be given express jurisdiction to determine disposition on deadlock, and the period during which proceedings are pending should be excluded from the ten-year ceiling, so that a contested case is decided on its merits rather than extinguished by the calendar. Since an amended form would operate prospectively, clinics should also be required to obtain a disposition instrument for embryos already in storage at the annual contact that Form 15 already mandates.
Conclusion
This is not the first occasion on which Indian law has confronted a regulatory gap in assisted reproduction. Baby Manji Yamada v. Union of India exposed the absence of surrogacy regulation only after a custody crisis, and regulation followed years later through the Surrogacy (Regulation) Act, 2021. The position on embryo disposition is better than that, because Parliament has already supplied the harder half of the rule in Section 22(4). What it has not supplied, and what the Central Government should now supply by amending the ART Rules, is any answer to the question of what happens on the day after a withdrawal.
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