The aspiration to become a parent is among the most intimate and profound of human desires yet it is not always fulfilled through natural means. In such cases, science intervenes. Few medical advances have redefined the contours of family and reproduction as significantly as Assisted Reproductive Technology (ART).
Since its emergence in the late 20th century, ART has evolved from a pioneering medical innovation into a global, multi-billion-dollar industry. In India, where the demand for surrogacy is rising, breaking the traditional hesitation, ART represents not only the promise of parenthood but also a critical avenue of medical and social recourse. However, for decades, the use of ART remained largely unregulated within the country, raising complex ethical, legal, and policy-related questions:
- Who is entitled to access these technologies?
- How should donor anonymity and rights be protected?
- What mechanisms exist to address failures or disputes?
India’s response to these challenges unfolded gradually, culminating in a series of legislative reforms aimed at establishing a coherent regulatory framework. This paper traces the trajectory of ART in India from its initial adoption and societal reception to the eventual enactment of legal standards that seek to balance innovation with accountability.
The Beginning: Scientific Progress, Legal Inertia
India’s engagement with Assisted Reproductive Technology (ART) began with a landmark event: the birth of the country’s first “test-tube baby” in 1978, mere months after the world’s first in the United Kingdom. While this moment was a scientific triumph, it also presaged the complex ethical, legal, and social questions that would follow.
Over the subsequent decades, ART procedures such as in vitro fertilisation (IVF), sperm donation, and embryo transfer became increasingly accessible, particularly in urban centres. Fertility clinics proliferated, often in the absence of robust oversight. At the same time, India emerged as a global destination for “reproductive tourism,” attracting international clients drawn by lower costs and a permissive, unregulated environment.
Despite the rapid expansion of ART services, regulatory frameworks lagged far behind. In place of binding legislation, clinics were nominally guided by advisory norms issued by the Indian Council of Medical Research (ICMR) guidelines that were frequently disregarded. Unfortunately, many are even unaware of the concept of surrogacy, what is that, and how it is regulated. Key issues around informed consent, data protection, donor anonymity, and the legal status of children born through ART remained largely unresolved.
The Legal Vacuum: When Absence of Law Causes Harm
The lack of formal regulation created a precarious environment in which innovation and exploitation coexisted. Ethical standards varied widely across clinics. Donor gametes were often reused without adequate consent. Surrogates were frequently undercompensated or inadequately informed of their rights and health risks. Furthermore, children born through ART sometimes encounter legal ambiguities concerning their citizenship and parentage.
In the absence of legislative clarity, Indian courts were frequently called upon to adjudicate ART-related disputes on an ad hoc basis. One of the most prominent examples was the Baby Manji Yamada v. Union of India case (2008), where the Supreme Court was compelled to intervene after a Japanese couple separated before the birth of their child via Indian surrogacy. With no statutory guidance, the Court allowed the child’s grandmother to assume custody a resolution that underscored the urgent need for comprehensive legal regulation.
2021: Surrogacy in India, Laws Implemented
After years of deliberation, India enacted the Assisted Reproductive Technology (Regulation) Act in 2021 a watershed moment for the sector. For the first time, the practice of ART was subject to a structured legal framework that established clear guidelines for clinical conduct, donor eligibility, patient rights, and the welfare of children born through assisted methods.
Under the Act, all ART clinics and banks are required to register with the appropriate authorities. Donor tracking became mandatory, and recipient eligibility was explicitly defined. Most importantly, the law granted full legal recognition to children conceived via ART, affirming their legitimacy and securing their rights to parentage.
However, the Act was not without controversy. While it brought long-overdue regulation, it also imposed several restrictive provisions—particularly around access and eligibility—which raised concerns about reproductive autonomy, gender equity, and inclusivity.
The Core of the Law: Regulation and Its Boundaries
At its heart, the Assisted Reproductive Technology (Regulation) Act, 2021, seeks to bring order and accountability to a field long characterised by legal ambiguity. Its stated objectives are clear: to standardise medical procedures, protect the rights and well-being of patients and donors, and ensure the ethical operation of clinics and gamete banks.
However, regulation in this context is not neutral—it is also inherently exclusionary. Access to ART services is restricted to married heterosexual Indian couples and, under limited conditions, single women. Unmarried men, LGBTQ+ individuals, and foreign nationals are explicitly excluded from availing themselves of these technologies. This exclusion reflects a narrowly defined normative vision of the family, one that aligns with traditional socio-legal constructs rather than contemporary realities of kinship and identity.
Within the regulatory framework itself, the law imposes several rigid limitations. Donors are permitted to donate only once in their lifetime, a restriction that—while intended to prevent exploitation—has led to unintended consequences in practice. Clinics are required to maintain extensive patient records for prolonged periods, raising concerns around data privacy and administrative burden. Age limits for recipients are strictly defined, with little scope for exceptions based on medical assessments or individual circumstances.
While these provisions may be well-intentioned, they reveal an underlying tension: the law’s efforts to protect can inadvertently constrain, excluding those who do not conform to a state-sanctioned ideal of family formation.
The Fallout: Legal Restrictions and Human Consequences
The implementation of the ART Act has not been without significant practical and ethical challenges. Clinics across the country have reported shortages in donor availability, a direct consequence of the one-donation rule. As gamete banks struggle to meet demand, treatment delays have become more common. In some cases, prospective parents have been denied access altogether, not due to medical unsuitability, but because they fall outside the narrow legal definitions of eligible recipients.
These regulatory exclusions are now being tested in the courts. In 2023, the Delhi High Court considered a petition challenging the single-donation restriction, with petitioners arguing that it was neither medically sound nor constitutionally justified, as it infringes upon individual reproductive autonomy. Parallel legal challenges have been mounted against the exclusion of LGBTQIA+ individuals from ART access, invoking Articles 14 and 21 of the Indian Constitution, which guarantee the right to equality and the right to life and dignity, respectively.
Such cases illuminate the core dilemma of ART regulation in India: how to reconcile the legitimate need for oversight with the equally vital imperative to respect individual rights, bodily autonomy, and the evolving diversity of familial forms.
Beyond Clinics: The Broader Ethical Landscape
Assisted Reproductive Technology (ART) is far more than a clinical intervention; it intersects with foundational questions of identity, privacy, kinship, and citizenship. Prior to the enactment of the 2021 ART legislation, children born through these technologies often existed in a legal grey area, particularly in cross-border cases involving international intended parents or anonymous donors:
- Who qualifies as a legal parent?
- How should the legal system respond when donor identities are concealed but genetic information becomes crucial in a medical emergency?
- What are the implications when an intended parent dies before the birth of the child?
These are not abstract or speculative concerns. They have emerged repeatedly in courtrooms, disrupted familial structures, and exposed the vulnerabilities inherent in an unregulated reproductive ecosystem.
The ART Act of 2021 attempts to address some of these ethical and legal dilemmas. It affirms the legal legitimacy of children born through ART and establishes clear guidelines for parental responsibility and informed consent. However, critics contend that in its effort to prevent abuse, the law may have overcorrected, imposing overly restrictive access criteria that exclude many legitimate stakeholders, including queer individuals, single men, and non-citizens.
What Lies Ahead: Towards a Responsive and Inclusive Framework
The passage of the ART Act marked a significant step in India’s journey toward regulated assisted reproduction. But it cannot be the final word. As biomedical technologies continue to evolve and societal understandings of family diversify, the legal framework must remain adaptive and responsive.
Encouragingly, momentum for reform is building. Ongoing constitutional litigation may compel the government to revisit exclusionary provisions. Legal scholars, civil society actors, and patient advocacy groups are increasingly vocal in calling for a more inclusive interpretation of reproductive rights—one that acknowledges the lived realities of LGBTQIA+ individuals, single parents, and others currently excluded from access. Simultaneously, clinicians are advocating for pragmatic adjustments to donor regulations, grounded in medical evidence rather than blanket legal prohibitions.
The national conversation on ART is finally taking place within the structured domain of statutory law, rather than solely in courtrooms or private clinics. This institutional foundation offers an unprecedented opportunity—not only to safeguard ethical standards, but also to ensure that reproductive technologies serve the full spectrum of human dignity, autonomy, and diversity.
Final Reflections: Law, Grounded in Empathy
At its foundation, Assisted Reproductive Technology (ART) engages with one of the most intimate aspects of the human experience, the aspiration to create and nurture life. While regulation is essential to ensure ethical standards and protect all parties involved, it must be tempered with empathy. An effective legal framework should not only govern the mechanics of science but also reflect the emotional realities and diverse identities of those it serves.
India’s ART Act represents a critical step toward institutionalising reproductive healthcare. It provides structure, accountability, and protection. Yet, for the law to be truly just, it must also be flexible, allowing room for diversity in family forms, discretion in clinical practice, and dignity for every individual seeking the path to parenthood.
Ultimately, the right to parenthood transcends statutes and procedures. It is not merely a matter of policy; it is a question of possibility, inclusivity, and human hope.
