Author: Shalini S, Saveetha School of Law
TO THE POINT
Embryo farming denotes the systematic creation, maintenance, and commercialisation of human embryos for purposes beyond establishing pregnancy, including research, tissue harvesting, or commercial trade. Indian law absolutely prohibits such commercialisation through two primary statutes: the for Assisted Reproductive Technology (Regulation) Act, 2021 (ART), and the Surrogacy (Regulation) Act, 2021. The constitutional dimensions of this prohibition are complex. Article 21 of the Constitution guarantees that reproductive autonomy forms an integral component of personal liberty and privacy rights, as established by the Supreme Court in several landmark judgments. However, Article 14 equality guarantee is potentially violated by current eligibility restrictions that limit ART services to married heterosexual couples only, constituting arbitrary classification that excludes single parents, LGBTQ+ individuals, and unmarried couples. The legislative framework establishes a three-tier oversight mechanism comprising National Boards, State Boards, and Appropriate Authorities, mandates clinic registration with the National Registry, prohibits sex selection except for genetic disorder diagnosis, and permits only altruistic surrogacy under strict eligibility criteria. Primary concerns include discriminatory access that excludes marginalized groups, the complete ban on compensation that denies women’s economic autonomy, international conflicts regarding citizenship and parentage in cross-border arrangements, and inadequate public sector infrastructure that limits accessibility for economically disadvantaged populations.
ABSTRACT
This research examines the legal prohibition of embryo commercialisation under Indian law through the Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021. The study analyzes constitutional validity pertaining to Articles 14, 15, and 21 of the Indian Constitution, establishing that while embryo farming is categorically prohibited to prevent commodification, the restrictive eligibility criteria discriminate against single parents and LGBTQ+ individuals. Through doctrinal analysis of Baby Manji Yamada and Jan Balaz precedents, this paper demonstrates the tension between reproductive autonomy and State paternalism. The research concludes that legislative reform is necessary to balance individual reproductive rights with protection against exploitation, ensuring inclusive access while maintaining ethical safeguards against potential life commodification.
USE OF LEGAL JARGON
The regulation of embryo commercialisation implicates several fundamental legal doctrines and constitutional principles. The parens patriae doctrine establishes the State’s inherent authority as sovereign guardian to protect those incapable of protecting themselves, providing constitutional justification for intervention to prevent embryo commodification and exploitation of vulnerable populations. Discriminatory eligibility criteria may be challenged as ultra vires, meaning beyond legal authority or exceeding constitutional limitations, particularly regarding equality guarantees under Articles 14 and 15. Section 23 of the ART Act explicitly prohibits the sale, purchase, or exchange of human embryos or gametes, with violations attracting 8-12 years imprisonment and fines ranging from ₹10-20 lakh for repeat offenses. Similarly, Section 2(g) of the Surrogacy Act defines and prohibits commercial surrogacy, including embryo trading, with penalties of 10 years imprisonment and ₹10 lakh fine.
THE PROOF
Statutory provisions provide concrete evidence of India’s prohibitory framework, with Section 34(1) of the ART Act establishing that children born through ART shall be deemed biological children of commissioning couples with full rights, while Section 4(iii)(b)(II) of the Surrogacy Act restricts eligibility to married Indian couples (husband 26-55 years, wife 25-50 years, married for five years), forming the basis for constitutional discrimination challenges. Section 36 prescribes severe penalties of ten years imprisonment and ten lakh rupees fine for commercial surrogacy, demonstrating legislative intent to eliminate commodification entirely, under the Article 21’s guarantee that no person shall be deprived of life or liberty except by law, and Article 14’s mandate of equality before law. Law Commission Report 228 (2009) documented that approximately 3,000 IVF clinics operated with minimal regulation pre-2021, generating over ₹25,000 crores annually, resulting in documented exploitation, citizenship disputes, and child abandonment cases that necessitated the current framework incorporating ICMR Guidelines (2005) requiring maximum three embryo transfers, donor anonymity, mandatory counseling, and ten-year record maintenance. Comparative analysis reveals India’s framework aligns with prohibitive regimes like France and Germany rather than permissive models like Ukraine and the United States, with the UK’s Human Fertilisation and Embryology Act (2008) providing a middle-ground approach permitting reasonable expenses that balances anti-commodification concerns with recognition of gestational labor value.
CASE LAWS
Baby Manji Yamada v. Union of India (2008) 13 SCC 518 constitutes the foundational precedent in Indian surrogacy jurisprudence. A Japanese couple commissioned gestational surrogacy in Gujarat, but divorced during pregnancy, leaving the biological father seeking custody while Indian adoption laws prohibited single male adoption of female children, rendering the child stateless. The Supreme Court held that surrogacy agreements constitute valid and enforceable contracts under the Indian Contract Act, 1872, thereby legitimizing commercial surrogacy arrangements. Applying the best interests of the child principle, the Court directed issuance of travel documents enabling the child’s departure with the biological grandmother, while recognizing the urgent need for comprehensive ART legislation. This decision established contractual validity of commercial surrogacy and catalyzed legislative intervention culminating in the 2021 enactments.
Jan Balaz v. Anand Municipality (2009) AIR 2010 addressed international surrogacy complications where a German couple commissioned an Indian surrogate who delivered twin boys, but both Germany and India disputed citizenship, creating statelessness that violated fundamental rights. The Gujarat High Court declared the twins Indian citizens under Section 3(1)(c)(ii) of the Citizenship Act, 1955, reasoning that since the gestational carrier was Indian and the children were born in India, they acquired citizenship by birth. The Court emphasized Article 21 rights of children and directed immediate passport issuance, establishing the principle that birth in India to an Indian surrogate confers Indian nationality, preventing statelessness and protecting children’s fundamental rights.
Suchita Srivastava v. Chandigarh Administration (2009) 14 SCC 600 expanded reproductive rights jurisprudence when a mentally disabled woman in State custody became pregnant and authorities sought judicial permission for abortion against her wishes. The Supreme Court held that reproductive choices constitute an essential dimension of personal liberty under Article 21, with women possessing constitutional rights to procreate, carry pregnancy to term, give birth, and raise children. These reproductive rights are intrinsically linked to privacy, dignity, and bodily integrity, establishing reproductive autonomy as a fundamental right and creating a doctrinal foundation for challenging restrictive ART eligibility criteria that limit reproductive choices based on arbitrary classifications like marital status or sexual orientation.
CONCLUSION
The prohibition of embryo commercialisation under Indian law through the ART (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021 reflects legitimate constitutional imperatives protecting human dignity and preventing exploitation, representing significant progress toward ethical regulation. However, the current architecture exhibits substantial constitutional infirmities, particularly discriminatory eligibility criteria excluding single parents, LGBTQ+ individuals, and unmarried persons, violating Article 14’s equality guarantee through arbitrary classifications lacking rational nexus to legitimate State objectives. Post-Navtej Singh Johar (2018) and X v. NCT (2023), which rejected marital status as valid criterion for reproductive rights, the restrictive framework appears constitutionally untenable, as reproductive autonomy established in Suchita Srivastava demands State regulation balance protective intervention with individual liberty. While embryo farming must remain absolutely prohibited to prevent commodification, legitimate reproductive assistance should be accessible without arbitrary discrimination, with the State’s parens patriae obligation fulfilled through nuanced regulation rather than categorical exclusion, as demonstrated in Baby Manji Yamada and Jan Balaz jurisprudence. Future amendments must expand eligibility to include marginalized groups subject to psychological and financial assessment, reconsider absolute prohibition on surrogate compensation through State-administered mechanisms, expand public sector ART infrastructure, and develop international protocols preventing statelessness. True constitutional compliance requires legislative reform eliminating arbitrary restrictions while maintaining robust safeguards, demanding nuanced policy respecting human dignity of both commissioning parents and surrogates without reducing potential life to commercial transaction, mandating inclusive access to reproductive technologies while preventing embryo commodification.
FAQS
Q1. What constitutes embryo farming under Indian law? Embryo farming refers to systematic creation, maintenance, and commercialisation of human embryos for purposes other than establishing pregnancy, categorically prohibited under the ART Act, 2021 and Surrogacy Act, 2021.
Q2. Is commercial surrogacy permitted in India? No, the Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy, permitting only altruistic surrogacy for eligible married Indian couples.
Q3. Do children born through surrogacy have citizenship rights? Yes, children born in India to Indian surrogates are Indian citizens under the Citizenship Act, as established in Jan Balaz v. Anand Municipality.
REFERENCES
Indian Kanoon (Case Law Database)
Law Commission of India, 228th Report: Need for Legislation to Regulate Assisted Reproductive Technology Clinics (August 2009)
The Constitution of India, 1950 (Articles 14, 15, 21)
The Assisted Reproductive Technology (Regulation) Act, 2021 (Act No. 42 of 2021)
The Surrogacy (Regulation) Act, 2021 (Act No. 47 of 2021)
