A legal battle with significant implications for assisted reproductive technology in India is unfolding in the Delhi High Court. A 46-year-old woman from Mumbai is seeking access to 16 cryopreserved embryos created with her estranged husband, challenging the requirements of the Assisted Reproductive Technology (Regulation) Act of 2021. The case raises complex ethical and legal questions about reproductive rights, marital breakdown and the autonomy of individuals undergoing IVF treatment.
The dispute began after a couple, married in 2021, underwent in vitro fertilization (IVF) in 2022 and froze embryos at a South Mumbai clinic. When their marriage deteriorated in 2023, the woman sought to transfer the embryos to another facility, a move allegedly blocked by her husband. Under the current legislation, both partners must consent to the transfer of embryos, creating a stalemate in situations where a marriage has irretrievably broken down. This case highlights a critical gap in the 2021 ART Act – what happens when a marriage collapses, but the desire for parenthood doesn’t?
Legal Challenge to Spousal Consent Requirement
The woman’s petition, filed before the Delhi High Court on Saturday, argues that the strict spousal consent requirement infringes upon her “constitutionally protected right to reproductive choice.” She contends that a rigid interpretation of sections 22 and 29 of the ART Act effectively denies her the opportunity to become a mother. She initially pursued the case in the Bombay High Court in July 2025, but later withdrew her petition to appeal to the National Assisted Reproductive Technology (ART) and Surrogacy Board in New Delhi. After receiving a “mechanical rejection” from the board on February 2, she turned to the Delhi High Court.
Represented by advocate Mohini Priya, the woman asserts that her situation is particularly acute, as she has been allegedly abandoned and subjected to abuse by her husband, who has pending matrimonial and criminal proceedings against him. Her petition claims he is “maliciously withholding consent” and holding her “reproductive future hostage to his unilateral veto.” The husband, This proves noted, already has a child from a previous relationship, adding another layer to the complexity of the case.
A Dual Legal Dilemma
The woman’s legal team argues she faces a “dual dilemma.” Not only is she blocked from accessing her own embryos due to her husband’s refusal, but prevailing Muslim personal law, which governs assisted reproduction in some cases, stipulates that IVF treatment is permissible only within a valid marriage. This creates a Catch-22: she cannot seek a divorce without forfeiting her chance at motherhood, yet her husband’s actions prevent her from proceeding as a married woman.
The petition further contends that the ART Act’s framework creates an inequity, granting autonomy to single women seeking ART services while imposing “insurmountable barriers” on women in broken marriages. “A woman outside marriage is treated as autonomous and competent to decide her reproductive future; a woman within a broken marriage is rendered contingent upon the will of a spouse who may have abandoned or harmed her. Such an interpretation inverts constitutional logic,” the petition states.
Adding to the urgency, the woman has already undergone invasive medical procedures, including major uterine surgery in February 2024, in her pursuit of motherhood. She cites her advancing age and diminishing fertility window as reasons for the court’s urgent intervention.
Seeking Legislative Change
The woman is requesting the Delhi High Court to allow the transfer of her embryos to another clinic for implantation without her husband’s consent. She also seeks a directive to the National ART and Surrogacy Board to approve the transfer in a timely manner. Beyond her individual case, she urges the court to either “read down” sections 22 and 29 of the ART Act or direct the board to propose amendments to address situations involving marital desertion, but not divorce.
The case is expected to be heard in the coming weeks, and its outcome could set a significant precedent for how the ART Act is interpreted and applied in cases of marital discord. The legal arguments presented are likely to spark further debate about the balance between individual reproductive rights and the legal framework governing assisted reproductive technologies in India.
Disclaimer: This article provides information for general knowledge and informational purposes only, and does not constitute medical or legal advice. It is essential to consult with a qualified healthcare professional or legal expert for any health concerns or legal questions.
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