Rights of Children Born Through ART

Key Takeaways

• Children born through Assisted Reproductive Technology (ART) have the same legal status as naturally conceived children. Section 31(1) of the Assisted Reproductive Technology (Regulation) Act, 2021 recognises a child born through ART as the biological child of the commissioning couple.
• Children born through ART are entitled to inheritance and succession rights. Their legal recognition as children of the commissioning couple provides the basis for claiming inheritance under the applicable personal and succession laws.
• Gamete donors do not have parental rights over children born through donated sperm or eggs. Section 31(2) of the ART Act requires donors to relinquish parental rights, thereby distinguishing genetic contribution from legal parenthood.
• Abandonment, disowning and exploitation of ART-born children are prohibited. Section 33 of the ART Act provides safeguards against practices that threaten the welfare and dignity of children conceived through assisted reproductive procedures.
• The identity and reproductive information of donors and commissioning parents are protected through confidentiality requirements. However, the extent to which ART-born children can access information about their genetic origins remains an important legal and ethical issue.
• Children born through ART are entitled to protections available under general Indian laws concerning children. Rights relating to maintenance, education, identity, dignity and non-discrimination arise from constitutional and statutory provisions.
• Children born through surrogacy receive additional statutory protection. The Surrogacy (Regulation) Act, 2021 recognises the legal status of children born through surrogacy and prohibits their abandonment.

What Are the Rights of Children Born Through ART in India?

The rights of children born through Assisted Reproductive Technology (ART) in India include legal recognition, parentage, inheritance, maintenance, protection against abandonment, privacy and other rights generally available to children.

These rights are primarily governed by the Assisted Reproductive Technology (Regulation) Act, 2021, which came into force on 25 January 2022.

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Section 31 of the Act is particularly important because it determines the legal relationship between a child born through ART, the commissioning couple and the gamete donor.

The provision establishes that a child born through ART is deemed to be the biological child of the commissioning couple and enjoys the rights and privileges available to a natural child from that couple.

This legal recognition is important because ART procedures may involve donor sperm, donor eggs or other reproductive arrangements in which genetic contribution and intended parenthood do not necessarily belong to the same persons.

The law therefore seeks to ensure that the circumstances of conception do not create uncertainty regarding a child’s legal identity or parental relationship.

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What Is Assisted Reproductive Technology (ART)?

Assisted Reproductive Technology refers to medical techniques used to achieve pregnancy through the handling of sperm or eggs outside the human body and the transfer of reproductive material or embryos into a woman’s reproductive system.

ART is commonly used in cases involving infertility or other reproductive difficulties.

Some commonly recognised ART procedures include:

• In Vitro Fertilisation (IVF): IVF involves fertilising an egg with sperm outside the human body in a laboratory. The resulting embryo may subsequently be transferred into the uterus to establish pregnancy.
• Intracytoplasmic Sperm Injection (ICSI): ICSI is a specialised fertilisation technique in which a single sperm is injected directly into an egg. It is frequently used in cases involving certain male infertility conditions.
• Donor Egg or Sperm Procedures: These procedures involve reproductive material donated by a person other than the intended parent. Such arrangements create important legal questions concerning biological relationships and parental rights.

The ART Act, 2021 regulates assisted reproductive technology clinics and banks, establishes standards for reproductive services and provides safeguards for women, commissioning couples, gamete donors and children born through ART.

Legal Framework Governing the Rights of Children Born Through ART in India

The legal rights of ART-born children arise from several statutory and constitutional provisions.

Assisted Reproductive Technology (Regulation) Act, 2021

The ART Act, 2021 is the principal legislation governing assisted reproductive technology in India.

Its important provisions include:

• Section 21: Establishes duties relating to ART services, including informing commissioning couples or women about the rights of children born through ART and maintaining confidentiality of relevant information.
• Section 31: Determines the legal status of children born through ART and addresses the parental rights of gamete donors.
• Section 33: Prohibits specified activities, including abandonment, disowning or exploitation of children born through ART.

These provisions collectively establish a framework for recognising parenthood and protecting children from certain forms of exploitation.

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Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 becomes relevant where a child is born through a legally regulated surrogacy arrangement.

Section 7 prohibits abandonment of children born through surrogacy, while Section 8 recognises their legal status as children of the intending couple or intending woman.

Although ART and surrogacy may involve similar reproductive procedures, the two laws regulate different aspects of assisted reproduction.

Constitutional and Other Legal Protections

Children born through ART are also protected by the general legal framework governing children in India.

Important constitutional provisions include:

• Article 14: Guarantees equality before the law and equal protection of the laws. It provides a constitutional basis for opposing arbitrary discrimination based on circumstances of birth.
• Article 21: Protects life and personal liberty, including the constitutional principles of dignity and privacy recognised through judicial interpretation.
• Article 21A: Guarantees free and compulsory education to children between six and fourteen years of age, subject to the constitutional and statutory framework.

Section 31 of the ART Act, 2021: Legal Status of Children Born Through ART

Section 31 is the central provision determining the legal relationship between children born through assisted reproductive technology and the persons involved in their conception.

Section 31(1): Recognition of Legal Parentage

Section 31(1) provides that a child born through assisted reproductive technology shall be deemed to be the biological child of the commissioning couple and shall be entitled to the rights and privileges available to a natural child from that couple.

The significance of this provision is that it establishes legal parentage through statutory recognition.

For example, where a married couple undergoes IVF using donated sperm, the involvement of a sperm donor does not automatically make the donor the child’s legal father.

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Instead, Section 31 recognises the child as belonging to the commissioning couple for the purposes covered by the provision.

This protects the child from uncertainty concerning family relationships and legal responsibilities.

Section 31(2): Parental Rights of Gamete Donors

Section 31(2) requires a donor to relinquish parental rights over children born from the donated gamete.

A gamete donor is a person who provides sperm or eggs for use in assisted reproductive procedures.

The provision establishes that genetic contribution does not automatically create legal parenthood.

Consequently, a donor cannot claim parental authority merely because the child’s genetic material originated from that donor.

It also provides an important basis for distinguishing between the responsibilities of legally recognised parents and the position of reproductive donors.

Do Children Born Through ART Have Inheritance Rights?

Yes. Children born through ART are entitled to inheritance and succession rights through their legally recognised parents, subject to the applicable personal and succession laws.

Section 31(1) of the ART Act recognises children born through assisted reproductive technology as the biological children of the commissioning couple.

Accordingly, the fact that a child was conceived through IVF or another ART procedure does not, by itself, exclude the child from inheritance.

Inheritance Under Hindu Law

Where Hindu succession law applies, the inheritance rights of an ART-born child must be determined through the Hindu Succession Act, 1956 together with the statutory recognition provided by the ART Act.

For instance, a child legally recognised as the son or daughter of a Hindu commissioning couple may claim succession rights in accordance with the applicable provisions governing children and legal heirs.

Such recognition is particularly relevant in cases involving donor gametes.

The absence of a genetic relationship with one parent does not, by itself, defeat the statutory recognition of parentage under Section 31.

However, the precise nature of inheritance rights depends on several factors, including whether the property is self-acquired or coparcenary property, the applicable succession rules and other relevant legal circumstances.

Inheritance Under Other Personal Laws

India follows different personal law frameworks governing succession.

The rights of ART-born children under Muslim, Christian, Parsi and other applicable succession frameworks require consideration of both the ART Act and the relevant personal or succession law.

Section 31 provides statutory recognition of parentage, but questions concerning shares, succession procedures and particular forms of property must be determined under the governing law.

Can an ART-Born Child Inherit Property from a Gamete Donor?

A child born through donated sperm or eggs does not automatically acquire inheritance rights against the gamete donor merely because of the genetic relationship.

Section 31(2) expressly requires the donor to relinquish parental rights.

The ART Act instead establishes legal parentage through the commissioning couple.

The donor’s genetic contribution should therefore not be treated as equivalent to legal parentage for inheritance purposes.

However, the statutory provision should not be interpreted as resolving every possible succession dispute involving voluntary testamentary transfers or other independent legal claims.

Can Gamete Donors Claim Parental Rights Over ART-Born Children?

Gamete donors cannot claim parental rights merely on the basis of donating sperm or eggs for an ART procedure.

Section 31(2) of the ART Act provides the legal basis for relinquishment of parental rights by donors.

This distinction is important because ART may involve several persons in the reproductive process.

For example, a child conceived using a donor egg may have a genetic connection with the egg donor, while the legal framework recognises the commissioning couple as the child’s parents under Section 31(1).

The donor cannot automatically claim custody, guardianship or decision-making authority based solely on genetic contribution.

Similarly, the legal responsibilities arising from recognised parenthood cannot ordinarily be transferred to the donor merely because the donor supplied reproductive material.

The ART Act therefore separates the concept of genetic contribution from statutory recognition of parenthood.

Protection Against Abandonment and Disowning of ART-Born Children

Children born through ART are protected against abandonment, disowning and exploitation under Section 33 of the ART Act, 2021.

This protection is important because assisted reproductive procedures may involve medical uncertainty, multiple pregnancies, congenital conditions or other unexpected circumstances.

Such circumstances do not justify treating a child as less deserving of legal protection.

Can Parents Abandon a Child Born Through IVF?

The ART Act prohibits abandonment and disowning of children born through ART.

Section 33(1)(a) addresses prohibited practices involving abandonment, disowning or exploitation of children born through assisted reproductive technology.

A child cannot lawfully be treated as an unwanted outcome of a medical procedure and deprived of statutory protection simply because the circumstances of birth differ from the expectations of the commissioning parents.

For instance, where a child is born with a congenital condition, that condition does not remove the child’s legal status under Section 31.

The child remains entitled to protections available under the ART Act and other applicable laws.

Protection Against Exploitation

The prohibition against exploitation also forms an important part of the legislative framework.

Children born through ART must not be treated as commercial products or subjected to practices that compromise their dignity and welfare.

The statutory safeguards operate alongside other Indian laws dealing with child protection, trafficking, abuse and exploitation.

Right to Privacy and Confidentiality of ART-Born Children

Privacy and confidentiality are significant legal issues in assisted reproduction because ART procedures involve sensitive personal, reproductive and genetic information.

Section 21(e) of the ART Act establishes confidentiality obligations concerning information relating to donors, commissioning couples or women and ART treatment.

These obligations are particularly relevant where donor sperm or eggs have been used.

Protection of Donor and Family Information

ART clinics and banks are required to maintain confidentiality in accordance with the statutory framework.

The information protected may include donor details, reproductive treatment records and information concerning the commissioning couple or woman.

However, confidentiality is not absolute.

The legislation recognises specified circumstances in which information may be disclosed, including statutory reporting requirements, certain medical emergencies and orders of competent courts.

Do ART-Born Children Have the Right to Know Their Biological Parents?

The right of ART-born children to know their genetic origins is a complex legal and ethical issue.

The ART Act recognises legal parenthood and imposes confidentiality obligations, but it does not establish an unrestricted general right for every ART-born child to obtain the identifying details of a gamete donor.

This creates a distinction between two issues:

• Legal Parentage: Section 31 determines the legally recognised parent-child relationship and distinguishes that relationship from the donor’s genetic contribution.
• Knowledge of Genetic Origins: Access to information concerning genetic ancestry or donor identity raises separate questions involving privacy, medical requirements, individual identity and confidentiality obligations imposed on ART clinics.

The position may become particularly important when a child requires medical information concerning inherited conditions or genetic health risks.

Nevertheless, any disclosure of protected information must comply with the relevant statutory provisions.

Right to Identity and Legal Recognition

Children born through ART are entitled to recognition as persons under Indian law, regardless of the medical method used for conception.

Legal identity is significant for matters such as birth registration, family relationships, education and access to public services.

Birth Registration of ART-Born Children

Children born through ART are subject to the ordinary legal framework governing birth registration.

The Registration of Births and Deaths Act, 1969 provides the general statutory framework for registering births in India.

ART conception does not create a separate category of children who may be denied birth registration because of the method of conception.

The recording of parental particulars must, however, comply with the applicable statutory framework and legally recognised parentage.

Right to Dignity and Equality

Articles 14 and 21 of the Constitution provide important principles relevant to the treatment of children born through ART.

Article 14 protects equality before the law, while Article 21 protects life and personal liberty, including dignity as recognised in constitutional jurisprudence.

These constitutional protections reinforce the principle that children should not suffer arbitrary disadvantages merely because they were conceived through assisted reproductive procedures.

Do ART-Born Children Have Maintenance Rights?

Children born through ART may claim maintenance from their legally recognised parents under the applicable maintenance laws.

Maintenance generally includes financial support required for basic living needs and may extend to education, medical care and other necessary expenses, depending on the governing law.

Section 31 of the ART Act provides statutory recognition of the relationship between children born through ART and the commissioning couple.

This recognition is relevant when determining parental responsibilities under other laws.

Maintenance Under Hindu Law

Section 20 of the Hindu Adoptions and Maintenance Act, 1956 governs the maintenance obligations of Hindu parents towards their children, subject to its statutory conditions.

Where the child is legally recognised as belonging to the commissioning couple under Section 31 of the ART Act, the applicable maintenance obligations must be examined in that context.

Maintenance Under Other Applicable Laws

Maintenance rights may also arise under other personal laws and general statutory provisions.

The availability, extent and duration of maintenance depend on the applicable legal framework and the child’s circumstances.

Importantly, the ART Act’s recognition of parentage does not independently prescribe every detail concerning the amount or duration of maintenance.

Rights of Children Born Through ART and Surrogacy

ART and surrogacy are related reproductive arrangements, but they are governed by separate statutes.

ART involves medical techniques used to assist reproduction. Surrogacy involves a woman carrying and giving birth to a child under a legally regulated arrangement for intending parents.

The Surrogacy (Regulation) Act, 2021 contains specific protections for children born through surrogacy.

Section 7: Protection Against Abandonment

Section 7 of the Surrogacy Act prohibits abandonment of a child born through surrogacy by the intending couple or intending woman.

The prohibition addresses abandonment on grounds such as a genetic defect, birth defect, medical condition or other specified circumstances.

This ensures that intended parents cannot simply reject a child because the child is born with an unexpected medical condition.

Section 8: Legal Status of the Child

Section 8 provides that a child born through surrogacy is deemed to be the biological child of the intending couple or intending woman.

The child is entitled to rights and privileges available to a natural child under applicable law.

This is similar in purpose to Section 31 of the ART Act, although the two provisions operate within different statutory frameworks.

Difference Between the Rights of ART-Born and Surrogacy-Born Children

Both laws seek to provide legal certainty concerning parenthood and prevent children from being abandoned or denied legal protection.

Legal and Ethical Challenges Concerning Children Born Through ART

Despite statutory regulation, assisted reproductive technology raises several legal and ethical questions.

Access to Genetic Information

The ART Act protects confidential reproductive information, but questions remain concerning the extent to which children should be able to access information about their genetic origins.

Such information may become relevant for understanding hereditary medical conditions or personal genetic history.

The legal challenge involves balancing the privacy interests of donors and commissioning parents with the interests of ART-born children.

Interpretation of Inheritance Rights

Section 31 recognises the legal status of ART-born children, but particular inheritance disputes may involve complex questions under personal and succession laws.

For example, disputes involving ancestral property, coparcenary interests or testamentary succession may require detailed examination of the applicable statutory provisions.

The recognition of parentage is therefore fundamental, but it does not eliminate every possible succession dispute.

Determination of Parentage in Complex Cases

ART arrangements may involve donated gametes, embryo preservation and circumstances in which reproductive treatment and childbirth occur at different points in time.

Such arrangements may raise difficult questions concerning consent, legal parentage and interpretation of statutory provisions.

These questions become more complicated where a factual situation does not fit neatly within the categories expressly addressed by legislation.

Welfare of the Child

The welfare of children remains an important consideration when legal disputes arise concerning family relationships, custody, guardianship and parental responsibility.

The circumstances surrounding conception should not displace the need to consider the child’s interests under the applicable legal framework.

The overall objective of child protection law is to ensure that children receive the care, legal recognition and protection required for their development.

Conclusion

The rights of children born through ART in India are primarily protected under the Assisted Reproductive Technology (Regulation) Act, 2021. Section 31 establishes their legal status as children of the commissioning couple and recognises their entitlement to rights and privileges available to naturally conceived children.

This legal recognition provides the foundation for inheritance, maintenance and other rights arising under applicable Indian laws. The legislation also distinguishes the legal position of commissioning parents from that of gamete donors and prohibits abandonment, disowning and exploitation of ART-born children.

The Surrogacy (Regulation) Act, 2021 provides additional safeguards where childbirth takes place through a regulated surrogacy arrangement.

Although the statutory framework provides important protections, questions concerning genetic identity, confidentiality, complex inheritance disputes and interpretation of parentage continue to require careful legal consideration.

The central legal principle is that the method of conception should not deprive a child of legal identity, parental recognition, dignity or the protections available under Indian law.