Ayushmaan Ashutosh Singh*
Introduction
We are acquainted with how IVF works, it is a clinical process of taking gametes of infertile couples fertilizing the same in clinic and implanting it in uterus. Earlier IVF works on instant implantation, however with rapid advancement in Assisted reproductive technologies (ART) IVF can be implemented through a delayed freezing mechanism, embryo freezing. It is a method where couples could submit their gametes to form embryo; such embryo can be freeze by the clinic for later use by the couples. ART act 2021, recognize this as a legitimate reproductive mechanism allowing maximum freezing up to 10 years. Embryo freezing has numerous pragmatic benefits, a women undergoing chemotherapy or cancer treatments can freeze the embryo to save her fertility as such treatments imperils the same, effective family planning, a counter for infertility and transfer of embryo after uterine environment is properly developed. This phenomenon is not uncommon ICMART world report records 28,07,963 ART cycles in 79 countries in 2016 resulting in 6,47,188 births, notably frozen thawed embryo transfer constituted 51.9% of all embryos transfers that year. India lacks adequate data records of frozen embryo, still an older analysis of 2009 analyze 3,087 frozen embryo transfer cycles. This breakthrough raises serious concern when it comes to inheritance rights of a child born through such embryo freezing after the death of biological father. Modern law regulating ART tools recognize succession rights of children born through cryopreservation, but the implementation is left to the traditional succession laws which largely contrast and ignore the rights stated in ART act. This creates an uncertain and ambiguous situation which must be tackled with coherent measures.
Conflicting Laws with Similar Purpose
ART recognizes embryo freezing as a lawful assistive reproduction mechanism under the ambit of assisted reproductive technology in section 2(1)(a). Further, section 22 lays down written requirement of consent and certain instruction for lawful cryopreservation of embryos or gametes. ART rule 13(1)(b) and 13(1)(f) expressly recognize freezing as a legitimate reproductive technique and pinpoint exact procedure for a lawful freezing process. Rules attach form 9 as a model requirement form which clinics have to compulsorily obtain from the couples before freezing of embryo or gamete. The foundational purpose of the form is to ascertain prospective disposal of the gamete in case of death or incapacity of any of the parties. It requires both partners to fill certain options in case of their death. They have the option to perish the embryo, hand it to a living partner, or use it for research purposes. The most significant aspect of ART acts arouses in inheritance rights of child born through such freezing.
Section 31 of ART act states, “the child born through ART methods shall be deemed to be biological child of commissioning couple and that child shall be entitled to all the rights and privileges available to natural child only from the commissioning couple under any law for the time being” Relying on this provision the child born with freezed combined gametes of couples, after multiple years have passed from the death of husband shall also be entitled to inheritance rights as a biological child would be, assuming other consent requirements of the act are complied with.
The traditional inheritance law lays emphasis on bloodline or consanguinity rather than on actual birth of the child for the entitlement of inheritance. This could be inferred from section 20 of Hindu succession act 1956 which deals with devolution of interest in coparcenary property and self-acquired property of deceased Hindu who dies intestate (without leaving a valid will). The provision says, “if a child is in womb at time of death of intestate and who is subsequently born alive shall have the same right to inherit as he or she had been born before the death of intestate”.
The primary purpose of such provisions is to pinpoint bloodline as an established parameter to determine inheritance rights. An embryo implanted into wife’s womb after the death of husband is not covered under this provision for inheritance, while child born through such implantation is a biological child of deceased father (if he had consented for the implantation earlier). Relying on actual purpose of Hindu succession jurisprudence, succession rights are granted on the basis of blood relation, actual birth at the time of intestate death per say is not required.
HSA came into existence in 1956 when advanced assistive technologies like freezing of gametes or embryos were non-existent. The first successful human pregnancy using cryopreserved embryo was reported in 1983. At that era when HSA incorporated, in case of husband’s death the only probability of prospective biological child would be ascertained within 9 months at max by finding whether the wife womb carries the deceased husband child at the time of the death. However, in the present era where freezing technologies have come into cosmos, partners can mutually freeze their embryos for 10 years. This implies even 10 years after the death of husband the wife could gave birth to child which biologically belongs to her deceased husband.
Even after numerous amendments, lawmakers have not made necessary safeguards to regulate new ART methods in traditional succession law. In contrast, multiple nations already addressed this concern way back than India. The disproportionate change in succession law with pace of advancement in technology creates a huge scope of uncertainty and prospective chaos regarding distribution of deceased property and violates prominent constitutional rights of freezed embryo oriented born child. Usually, properties where set aside after the death of intestate immediately, legal ignorance towards these assisted technologies will create numerous property disputes in coming times. Hence, there’s an urgent need to reform HSA to meet its foundational purpose while also regulating modern realities.
How Other Jurisdiction Addresses these Advancements
USA
The USA has been in forefront in harmonizing succession law with changes in assisted reproductive technologies. The shifts in succession law ignited by decision of Massachusetts SC in Woodward (2002), court dealing with a case of women being impregnated after the death of husband by his sperm which he had freezed in the clinic. The question of inheritance as a natural child arose before the court. Court answered it affirmatively with some conditions firstly, surviving parent must show genetic relation, secondly descendent parent consent to posthumous reproduction must be established through evidence and lastly compliance with limitation rules is required. While this was a state based isolated ruling, a broader change in law has been bought through Uniform parentage act 2017 amendment, which recognize child born through freezing of embryo through the combine gametes of husband and wife after the death of husband will be a legitimate biological child of such couple. Section 708 specifically deals with establishment of parentage and inheritance right in case where embryo is conceived in mother’s womb after father’s death. It states such conceiving of child will not preclude the parentage or inheritance status of the child if the deceased provides consent for such implantation of embryo before or at the time of death, in absence of express consent, clear evidences could be drawn for inferences. Lastly the provision mentions a limitation clock; the embryo should be implanted in uterus not later than 36 months after death of husband or child must born within 45 months of husband death.
These provision addresses two major concerns aroused due to freezing breakthrough, firstly it put a strict threshold of consent form mechanism and secondly it imposes limitation condition which protects the interest of other stakeholders simultaneously giving due rights to unborn biological child of the deceased.
Australia
While contemporarily Australian legislation doesn’t recognize the inheritance rights of child born after death of husband through implanting freezed embryo after death, due to express prohibition on such methods. However Australian legislators have passed Assisted reproductive technology and surrogacy act 2025, which will be implemented from 2027, this act adequately addresses the inheritance concern in embryo freezing cases by expressly recognizing parentage between deceased husband and the child born through embryo freezing after such death. Section 76 of the given act allows a surviving partner to use deceased person’s reproductive material or embryo for her reproductive process only where such use is expressly permitted by deceased consent or by approval of the board, section 78 places similar obligation on licensee with addition to medical certification conditions. Section 83 requires the licensee(clinics) and the surviving partner to apply before a medical board an application for using reproductive material of deceased, the board will adjudge on that considering the wishes of deceased through past consent forms and interest of prospective child. Lastly, section 34(2) enforces the entire outcome stating the deceased person will be the parent of child born through ART procedure assuming it complies with conditions of section 78 and other written law. Granting parentage recognition automatically entitles the child with inheritance under Australian law.
Reforming the Outdated Provision: Filling The Gap Between Purpose and Reality
HSA 1956 has a coherent purpose within section 20, to provide succession by blood relation and not by physical birth. However, this provision lost its actual aim with advancement in ART methods and absence of amendment within the act to address the same. The ignorance of succession to act towards reproductive technologies like embryo freezing can create massive problems and numerous violations of constitutional rights. HSA should be amended to adopt coherent safeguards against these technologies drawing inspiration from models of USA and Australia.
Firstly, section 20 should recognize that at the time of death of an intestate if he has/had given his reproductive materials for freezing with her wife’s reproductive material compounded with express consent form to use the freezed embryo for future implantation in wife uterus in case of his death then a child born through such implantation of embryo after the death of husband will have the same right to inherit as natural biological child. Secondly, it must lay down certain conditions for assessing requirements first. This will include identifying express consent of deceased intestate to surrender the gametes with intent to become future parent and finding out genetics’ relation between deceased and embryo. To assess these requirements a board like Australia could be established as a registration or assessing authority. While these reforms will address the equal rights of biological child born through embryo freezing, the same recognition without time limit could hamper the certainty in succession as other heirs might have to wait for 8-10 years for the distribution of property. To counter this uncertainty limitation, a clock, similar to the USA, must be adopted. Which implies a widow wife could use the embryo after deceased death within a time limit of 36 months; this will recognize the right simultaneously protecting the interest of other heirs. These reforms could be either bought under ART regulations with a formal recognition of the same in HSA, or HSA could be directly amended. Lastly, the mandatory consent form attached in ART rule 9 must be modified. The consent options must be more specific and prospective for better assessment at the time of succession.
* The author is a second-year student at Hidayatullah National Law University, Raipur. The author may be contacted at ayushmaan.253300@hnlu.ac.in
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.