Who gets to be a parent? Changing family dynamics challenge IVF, surrogacy laws

Four years after the Assisted Reproductive Technology (Regulation) Act and Surrogacy (Regulation) Act came into force, cases are turning up at courts challenging the legislation’s strict definition of who gets to be a parent.

In the past year alone, high courts across India have heard at least 33 such petitions. In several cases, the Centre has appealed, apprehending that reliefs granted to individuals may become legal precedents.

One of the key contentions is the strict age limit for accessing ART services (21-50 years for women, and 21-55 years for men) and surrogacy (23-50 years for women, and 26-55 years for men).

In October 2025, a Division Bench of the Supreme Court ruled that the age bar will not apply retrospectively to those couples who had commenced the reproductive process before the 2022 regulations came into force. However, the constitutional validity of the age limits remains pending for adjudication before the apex court.

The other issues which have come up before courts include – What happens to embryos created before the law changed? Can reproductive material be used after death? Can frozen embryos be donated instead of destroyed? Can an OCI status be a ground to bar surrogacy?

While the ART Act regulates fertility clinics, gamete donation, embryo storage and assisted reproductive procedures, the surrogacy Act lays down that the procedure can only be “altruistic” and prohibits commercial arrangements. There is a National Assisted Reproductive Technology and Surrogacy Board to advise and oversee implementation. However, the laws do not provide a dedicated forum for dispute resolution.

A personal law and marital hurdle

About three months after she got married, a now 46-year-old resident of Mumbai signed a joint consent form with her husband for freezing of embryos. Sixteen embryos were accordingly frozen and stored. Soon after though, the couple’s marriage broke down, with the woman alleging “sustained domestic violence, cruelty and abandonment”. According to the woman, it was only then that she came to know that her husband had told the clinic sometime in late 2022 to put on hold the process regarding the embryos.

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Now, with her estranged husband refusing consent on the use of the embryos, the 46-year-old is bound by Section 22 of the ART Act that stipulates that no clinic shall perform any procedure without “written informed consent of all the parties”. The Act also permits unilateral withdrawal of consent, with no safeguards or exceptions for cases of marital discord.

In March this year, the woman moved the Delhi High Court, petitioning that she was “in an invidious and coercive legal dilemma… arising from the combined operation of statutory rigidity and prevailing personal law norms”. Being a Muslim, she said, she was bound by the Muslim personal law where the understanding regarding assisted reproduction was that it was permissible only within a valid marital bond. This meant that while she could not seek dissolution of marriage without forfeiting her chance at motherhood, under the ART Act, she could not have the procedure as a married woman “due to the obstructive conduct of her husband”, she pleaded.

The High Court told her to first approach the Bombay High Court. Meanwhile, the 46-year-old remains apprehensive about hitting the age ceiling.

The citizenship hurdle

In November 2022, Bhoomi Patel, a New Zealand citizen holding an Overseas Citizen of India (OCI) card, was diagnosed with cancer in her uterine lining. Before hysterectomy in February 2023 for the removal of her uterus, Patel preserved her functional ovarian reserve, to keep the option of motherhood through ART open.

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Now 38 and divorced, Patel said she tried for surrogacy in India. But then realised she did not have the option. While the surrogacy Act allows widow or divorcees aged between 35 and 45 years to avail the procedure, this is open only to Indian citizens. OCI-cardholding non-Indian citizens can avail surrogacy under the Act only if they are married.

Patel, who had got married in 2012 in Surat, got divorced from her husband in August 2021 due to “irreconciliable differences”. One of these was over children; Patel wanted them, her husband did not.

In August 2025, Patel moved the Delhi High Court seeking permission to pursue surrogacy in India, using her own gametes and donor sperm, pointing out that she has been medically advised against carrying a pregnancy herself. She also sought that OCI divorced women be made eligible for surrogacy in India, arguing that their exclusion “perpetuates a Constitutional injustice by ignoring the lived realities and reproductive aspirations of single women of Indian origin”.

Patel said it is not easy for her to take the surrogacy route in New Zealand, where too it has to be “100% altruistic”. “I don’t want to ask any of my friends here in New Zealand to be my surrogate. It is a big favour to ask of someone… I have extended family in India, I was born there.”

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Adoption too is difficult in her case, Patel pointed out. In New Zealand, fewer children are up for adoption, and there is a long waiting list, and in India, “as a single person, it is practically impossible to be cleared for adoption”.

In its arguments in court, the Centre has said that the OCI exclusion regarding divorced couples was as per “legislative intent”, to limit the demand for surrogacy to the “most genuinely needy couples”. OCI couples, unlike OCI divorcees, are “a marital unit (that) provides shared responsibility” and a “legally recognised familial structure”, the government has argued.

A gender gap

Dr Maheshwara M V, a Bengaluru-based dental surgeon, got married in 2012. But the relationship soon ran into trouble and, by 2018, he was divorced.

In October 2020, Maheshwara says, his 72-year-old father passed away, regretting that he had never had a grandchild. The doctor then decided to move the Supreme Court, challenging the exclusion of single divorced men from availing surrogacy.

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“The assumption that only a married couple or a woman can provide a loving and stable home for a child is inherently flawed and regressive,” Dr Maheshwara, 46, said, adding that if the State recognises the reproductive autonomy of single divorced women to build a family, it must extend it to single divorced men too.

Stuck in the middle

Having lost their son, a Delhi-based couple approached a fertility clinic to undergo IVF. Both were within the age limit and, accordingly, six embryos were created and preserved. One embryo was also transferred, but the attempt failed.

When the couple sought another embryo transfer, the hospital refused as, in the intervening months, the woman had hit the age limit of 50 under the ART Act.

The couple moved the Delhi High Court, which allowed the transfer last month. “The distinction between initiation of a fresh ART cycle after crossing the statutory age threshold and continuation of an already commenced treatment involving existing cryopreserved embryos cannot be lost sight of,” the court said.

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A similar issue had brought a married couple to the Calcutta High Court in 2023. Granting an interim order for the couple to continue with embryo preparation, the court pointed to several anomalies in the statute, including its failure to evaluate eligibility at the level of “a commissioning couple”. It also questioned why age restrictions applied to intending parents but not to gamete donors.

Dead person’s rights

In October 2024, Gurvinder Singh and Harbir Kaur, aged 66 and 61, respectively, approached the Delhi High Court seeking that a cryopreserved sperm of their 30-year old son who had died of cancer be released to them.

The court held that there was no statutory prohibition regarding establishing the deceased person’s consent and directed the hospital to release the material. Stating that neither the ART nor surrogacy Act dealt with a situation such as theirs, the court observed that grandparents are “equally capable of bringing up their grandchildren”.

The Ministry of Health was also directed by the court to consider whether legislation was required to deal with such scenarios.

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The Centre challenged the order, and in January 2026, submitted that gametes are not heritable property and that parents cannot be recognised as the “intending couple” under either Act.

Donation debate

A challenge before the Delhi High Court is about what happens to surplus embryos created during IVF treatment.

In a PIL filed this year, Mumbai-based IVF specialist Dr Aniruddha Malpani challenged provisions barring the transfer of frozen embryos to another couple, arguing that when the law permits donor sperm, donor eggs and even IVF using both donor gametes, there was no “intelligible differentia” to prohibit embryo donation.

The bar on embryo donation means viable embryos are destroyed even as infertile couples are denied access to a “medically established” reproductive option, Malpani’s PIL said.