Frozen Embryo Donation Debate: Delhi HC Examines ART Law’s Restrictions

Why in News ?

The Delhi High Court has issued notice on a Public Interest Litigation (PIL) challenging provisions of the Assisted Reproductive Technology (Regulation) Act, 2021 and its Rules, which mandate that unused frozen embryos cannot be donated to another infertile couple, even with full consent. Instead, such embryos must either be donated for research or “allowed to perish” after a storage period of 10 years.

The petition questions the ethical, legal, and constitutional validity of forcing viable embryos to be destroyed when willing recipient couples exist.

What the Law Allows

The ART Act, 2021 permits:

• Altruistic donation of sperm and eggs under regulated conditions.
• Donor-assisted IVF, including double-donor IVF, where embryos created from donor sperm and donor eggs are implanted in a commissioning couple.
• In such cases, the child has no genetic link with either parent, and the law explicitly recognises this form of non-genetic parenthood.

However, despite allowing donor-based embryo creation, the law does not permit the donation of surplus frozen embryos to another infertile couple for reproductive use.

How the Prohibition Works

The ban on embryo donation arises from how multiple provisions of the ART Act and its Rules operate together:

• Embryos tied to the original couple: Clinics can preserve unused embryos only for the commissioning couple and are prohibited from transferring them to any other person.
• Limited scope of embryo transfer: Transfer is allowed only when the same couple seeks to use its own embryos for personal reproductive purposes, and only with regulatory approval.
• Mandatory endpoint after 10 years: Under Section 28(2), embryos can be stored for up to 10 years. After this, they must either:
  • Be donated for research, or
  • Be “allowed to perish”.
• Consent forms reinforce the restriction: Official consent formats do not offer embryo donation to another couple as an option, effectively closing that pathway.

Fresh vs Frozen Embryos: The Core Contradiction

The petition highlights a central inconsistency in the law:

• Fresh donor embryos are allowed: The ART Act permits embryos created from donor sperm and donor eggs to be transferred to a commissioning couple, even though the child has no genetic link to the parents.
• Frozen embryos are biologically equivalent: Once thawed, frozen embryos are biologically identical to fresh embryos and are routinely used in IVF with comparable success rates.
• Different legal treatment: Despite this equivalence, frozen embryos are barred from being transferred to another couple for reproductive use.
• Alleged double standard: The plea argues that the law accepts genetic non-linearity in fresh donor embryos but rejects the same principle for existing frozen embryos, creating a legal and ethical inconsistency.

The Constitutional Challenge to the ART Law

The petition invokes Articles 14 and 21 of the Constitution:

Article 14 – Equality Before Law

• The law distinguishes between couples allowed to receive fresh donor embryos and those barred from receiving frozen embryos.
• In both cases, the child has no genetic link to the parents.
• The plea argues that this classification lacks an intelligible differentia and a rational nexus with the law’s objectives, making it arbitrary.

Article 21 – Reproductive Autonomy

• Reproductive choices, including how and whether to have a child, fall within the right to life, dignity, and privacy.
• Blocking embryo donation is argued to be an unjustified intrusion into decisional autonomy.

Compulsory Destruction as a Core Concern

• The requirement that viable embryos be “allowed to perish” after 10 years is described as a legislative absurdity, especially when consenting recipient couples exist.

Why the Case Matters

The case raises significant social, ethical, and policy concerns:

• Scale of infertility: An estimated 27–30 million couples in India face infertility, making access to assisted reproduction a major public health issue.
• Limits of existing options: IVF is expensive and often requires multiple cycles, while adoption involves long waiting periods and procedural hurdles.
• Embryo donation as an alternative: Regulated embryo donation could offer a middle path, allowing couples to experience pregnancy and childbirth.
• Equity and access: Wealthier couples can access embryo donation abroad, while others cannot, turning reproductive choice into a function of economic privilege rather than medical need.