When Consent Becomes Control: Spousal Veto And Reproductive Autonomy Under ART Act, 2021

Consider a concrete scenario: Mrs. A, in her late thirties, is a victim of domestic violence and cruelty. Divorce proceedings are underway. Conscious of her declining fecundity and the practical difficulty of natural conception, she wishes to have her eggs cryopreserved. Her husband, Mr. B, refuses consent. Under the current statutory framework, that refusal is legally operative. Mrs. A cannot proceed. The law, in effect, allows an abusive spouse to veto a woman's most intimate biological choice, and because fertility declines with age, the harm is irreversible.

Consent Architecture under the Assisted Reproductive Technology (Regulation) Act, 2021:

The ART Act, 2021 was enacted to regulate and supervise assisted reproductive technology clinics and assisted reproductive technology banks, prevent misuse, ensure the safe and ethical practice of assisted reproductive technology services, address reproductive health issues where assisted reproductive technology is required to become a parent or to freeze gametes, embryos, or embryonic tissues for future use due to infertility, disease, or social or medical concerns, regulate and supervise research and development, and address matters connected with or incidental to the foregoing. The ART Rules, 2022, operationalize these provisions.

The Act addresses married couples seeking ART services through the category of “commissioning couples” defined as “an infertile married couple who approach an assisted reproductive technology clinic or bank for obtaining the services authorised of the said clinic or bank.” This definition does not contemplate a woman estranged from her spouse who seeks to cryopreserve her gametes independently. This legislative gap does not seem to be accidental; it seems structured and has consequences.

Section 22(1)(a) bars ART clinics from performing any treatment or procedure without “the written informed consent of all the parties seeking assisted reproductive technology.” Section 22(2) further mandates that clinics not cryopreserve any human embryos or gametes without specific written consent from “all the parties.” Rule 13(f)(v) of the 2022 Rules reinforces this through Form 10, requiring written consent of both husband and wife for gamete freezing in married couples. Either spouse's refusal thus operates as an absolute veto. For a woman in a hostile or estranged marriage, this is not a procedural formality; this is a structural barrier.

Reproductive Autonomy, Fecundity, and Article 21:

The Supreme Court has consistently held that a woman's right to make choices is a dimension of personal liberty under Article 21. In X vs Principal Secretary, Health and Family Welfare Department^[1], the court held that reproductive rights include “the right to choose whether and when to have children” and that “women must also have the autonomy to make decisions concerning these rights, free from coercion or violence.” In K.S. Puttaswamy vs Union of India^[2], the court further affirmed that decisional autonomy encompasses intimate personal choices, including those governing reproduction. A statutory scheme that hands a hostile spouse a legal veto over such choices sits in direct tension with these established principles.

The biological dimension of this problem is equally significant. Data from the National Family Health Survey, 2019-21 (NFHS-5)^[3], shows that India's Total Fertility Rate has declined from 3.4 children per woman in 1992–93 to 2.0 in 2019–21. The Survey further records that in all NFHS rounds, fertility peaks at age 20–24, after which it declines steadily. Biological fecundity follows the same arc. A woman in her late thirties faces a meaningfully narrower window for viable oocyte preservation than one in her twenties. Where that window is foreclosed, not by medical necessity but by a withheld spousal consent, the injury is permanent. No court order can restore lost fertility.

Mandatory spousal consent, in the context of estrangement or ongoing matrimonial litigation, serves no legitimate regulatory purpose at the stage of egg freezing. No embryo exists; no shared reproductive decision is being made. What the requirement does is convert the spouse's cooperation into a legal precondition for a woman's purely individual biological act. That outcome cannot survive scrutiny under Article 21.

Gametes as Protected Legal Interest:

A parallel basis for protection emerges from a recent Delhi High Court ruling in Gurvinder Singh & Anr. v. Govt. of NCT of Delhi & Ors^[4]. The Court recognized a jurisprudential shift away from the traditional “no-property” rule, holding that reproductive material, owing to its unique procreative potential, may assume the character of property, capable of forming part of an individual's estate and devolving under applicable succession law. If gametes carry proprietary character, restrictions on their preservation implicate not only decisional autonomy but also proprietary rights, thereby attracting heightened constitutional scrutiny. A spousal veto over the decision to preserve one's own gametes is, on this analysis, doubly impermissible: it overrides both bodily autonomy and proprietary control.

Structural Coercion- The Hostile Spouse Problem:

The scenario described in the introduction is not hypothetical in character. In practice, spousal consent requirements in the context of matrimonial breakdown create a systemic risk of what may be termed “reproductive coercion by legal design.” Where criminal proceedings for cruelty or domestic violence are pending against a husband, obtaining his written consent for the wife's gamete preservation is not merely inconvenient; it is practically unviable and conceptually absurd. The law, as drafted, does not account for this reality

Section 22 of the ART Act mandates spousal consent without carving out any exception for estrangement, judicial separation, pending divorce, or subsisting protection orders. The statutory requirement is absolute. Its effect in hostile marital situations is to give one spouse, often the dominant or abusive one, an instrument of legal control over the other's body. The ART Act was designed to regulate reproductive technology, not to extend the reach of marital power. That it achieves the latter in cases of estrangement is a structural failure, not a design feature.

The Way Forward:

Two reforms are required:

First, the ART Act must introduce specific safeguards addressing coercion and unequal marital dynamics; a woman who holds a protection order should not be required to seek cooperation from the person she is protected against.

Second, the law must clarify the legal status of frozen gametes, whether as property, personality rights, or a distinct protected category, and articulate the rights of women over their preserved material at every stage: extraction, storage, use, and destruction.

A woman's decision to preserve her reproductive capacity is deeply personal, often shaped by health, age, relationships, and the uncertainty of life itself. Yet, under the Assisted Reproductive Technology (Regulation) Act, 2021, a married woman cannot make this choice on her own; she must secure her husband's written consent. On paper, this may appear to be a safeguard. In reality, especially in situations of separation, estrangement, or abuse, it can become a tool of control.

The Constitution does not recognize such conditional autonomy. The Supreme Court has repeatedly held that reproductive choice is a core part of the right to life and personal liberty under Article 21. It is about dignity, bodily integrity, and the freedom to make intimate decisions without external veto. Making this choice dependent on a spouse undermines that guarantee.

There is also a practical reality the law cannot ignore; biological time does not wait. Legal disputes and broken relationships can stretch on, but fertility does not. A delayed decision can quickly become a denied one.

It is time to revisit the ART framework with a clearer lens. The law must place the individual at the centre of consent, not the marriage. Only then can it truly respect the lived realities of women and the constitutional promise of autonomy.

1. (2022 LiveLaw (SC) 809 ↑

2. Arising out of W.P. (C) 494 of 2012, Supreme Court of India ↑

3. National Family Health Survey, 2019-21 ↑

4. Arising out of WP(C) 15159 of 2021, Delhi High Court ↑