The Delhi High Court on Wednesday issued notice to the Central Government on a petition challenging the legal prohibition on the donation and adoption of cryopreserved embryos by infertile couples under the Assisted Reproductive Technology (Regulation) Act.
A division bench of Chief Justice D K Upadhyaya and Justice Tejas Karia sought the government’s response while hearing a petition filed by Dr Aniruddha Narayan Malpani, a fertility expert. The petition contests the constitutionality of Sections 25(2), 27(5), 28(2), 29, and Rule 13(1)(a) of the Act, arguing that these provisions effectively impose a “blanket prohibition” on the donation of surplus frozen embryos to other couples, even when done voluntarily and without commercial consideration.
According to the plea, while the law permits certain forms of assisted reproductive techniques, it fails to account for altruistic and consensual embryo adoption, which is a scientifically accepted method for enabling parenthood among infertile couples. It highlighted that embryo adoption—although not expressly defined in the statute—involves the voluntary transfer of surplus embryos, created through in-vitro fertilisation (IVF), from one couple to another for implantation and gestation.
The petition contended that prohibiting such adoption amounts to arbitrary discrimination, particularly since adoption of live-born children is permitted under Indian law. It argued that the only distinguishing factor—being the developmental stage of the child (embryo vs. infant)—cannot justify the unequal treatment, especially when both methods serve the same end of enabling parenthood.
Dr Malpani’s petition further invoked Articles 14 and 21 of the Constitution, asserting that the denial of the right to adopt embryos violates the fundamental rights to equality, reproductive autonomy, dignity, and privacy. It stressed that reproductive choices, including the right to become a parent through embryo donation, are part of an individual’s right to life under Article 21.
The court posted the matter for further hearing in April.
