ASSISTED REPRODUCTIVE TECHNOLOGY AND HUMAN RIGHTS: A LEGAL AND ETHICAL ANALYSIS

Abstract

On the eve of the twenty first century, India is at a tipping point in the regulation of Assisted Reproductive Technology (ART) with two legislation Acts namely, the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021. This formally introduced the idea of regulation in a space that was previously largely unregulated for more than four decades. This review research paper aims to explore and examine the legal and ethical implications of ART in light of ‘human rights’, with a comprehensive analysis, while questioning the ability of the regulatory framework to ensure the reproductive autonomy, dignity and equality of every individual seeking the aid of ART. Based on a systematic review of the constitutional jurisprudence, landmark Court judgments of Indian Supreme Court and various High Courts, as well as peer-reviewed scholarly literature and state-wise epidemiological data, the current research suggests that the 2021 Acts, though a significant improvement normatively, also have constitutionally questionable and ethically unsound structural exclusions, in particular of LGBTQ+ citizens, single fathers, widowed and divorced women, and economically marginalised groups. Specifically, the above cases: Baby Manji Yamada vs Union of India (2008), Jan Balaz vs Anand Municipality (2009), Suchita Srivastava vs Chandigarh Administration (2009), K.S. Puttaswamy vs Union of India (2017), and Arun Muthuvel vs Union of India (2022-2025)– indicate a court that is becoming more open-minded to the idea of reproductive rights as fundamental constitutional rights. The paper also calls for a legislative reform, based on rights that places human dignity, autonomy and substantive equality at its heart.