Delhi High Court Issues Notice On Plea Against Bar On Adoption Of Unused Embryo By Infertile Couples

The Delhi High Court on Wednesday (January 28) issued notice on a PIL challenging "blanket prohibition" on altruistic donation of a couple's unused frozen embryos, for adoption by another infertile couple.

A division bench of Chief Justice DK Upadhyaya and Justice Tejas Karia orally observed that the Petitioner seeks to expand the scope of Section 28 of the Assisted Reproductive Technology (Regulation) Act 2021, which governs storage and handling of human gametes and embryos.

For context, the plea moved by an IVF and infertility specialist challenges Sections 25(2), 27(5), 28(2), 29, and Rule 13(1)(a) of the Act on the ground that the provisions collectively restrict embryo adoption, whereas they otherwise permit double-donor IVF.

"Embryo adoption is, in substance and effect, indistinguishable from double-donor IVF, wherein neither intending parent shares a genetic link with the child, yet parentage is clearly vested in the recipient parents. Thus, the differential treatment of embryo adoption, despite functional equivalence, lacks any rational nexus with the object of the Act and is liable to be struck down as arbitrary and discriminatory under Article 14," the plea states.

"The right to make reproductive choices, including the decision to have a child, is an integral facet of the right to life, dignity, autonomy, and privacy guaranteed under Article 21 of the Constitution. Denial of access to a medically accepted, ethically regulated reproductive option, without any compelling state interest, constitutes an unwarranted intrusion into reproductive autonomy and inflicts grave psychological, social, and emotional harm on infertile couples," the plea further claims.

During the hearing, Senior Advocate Maneka Guruswamy appearing for the Petitioner argued that the Act bars use of assisted reproductive technology for commercial purposes, with the object to prevent exploitation. However, a bar on altruistic donation of embroy goes against the objective of the Act and appears to be a "legislative conundrum".

"You allow certain technology (altruistic sperm and egg donation) but not another technology (embryo donation)...This is legislative oversight...it seems to be a contradiction in the Statute," she added.

Guruswamy also mentioned that a similar plea was filed back in 2024 but the Court had then relegated the party to approach the government authorities. Dissatisfied with their response, the Petitioner has again approached the High Court.

After hearing the matter for some time, the Court issued notice to the Centre and the National Assisted Reproductive Technology and Surrogacy Board, seeking their replies in six weeks.