1. Meaning of Parentage Certainty in Reproductive Technology

Parentage certainty means legal certainty about who will be recognised as the child's parent(s), particularly where conception occurs through:

• IVF/ICSI;
• donor sperm;
• donor oocyte;
• embryo donation;
• intrauterine insemination;
• cryopreserved gametes/embryos;
• gestational surrogacy; or
• combinations of these techniques.

Ordinary reproduction generally produces a relatively simple relationship:

genetic father + genetic mother + gestational mother = intended/legal parents.

ART can separate these roles:

This distinction is expressly recognised by the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act). Section 31 provides that a child born through ART is deemed to be the biological child of the commissioning couple and receives the rights and privileges of a natural child from that commissioning couple; the donor relinquishes parental rights.

Assisted Reproductive Technology (Regulation) Act, 2021 — India Code

2. Why “Parentage Certainty” Is Difficult in ART

The principal legal problem is:

Should parentage be determined by genetics, gestation, consent, intention, marriage, or statute?

For example:

Example 1 — Donor sperm IVF

A married couple uses:

• wife's egg;
• donor sperm;
• IVF;
• wife carries and gives birth to the child.

Genetically:

• mother = wife;
• father = sperm donor.

But legally under Section 31 ART Act:

• mother/father = commissioning couple;
• donor = no parental rights.

Therefore:

Genetic parentage ≠ legal parentage.

Example 2 — Gestational surrogacy

Intended father's sperm + intended mother's egg → embryo → surrogate's uterus.

The surrogate gives birth, but she is not genetically related to the child.

Thus:

gestational motherhood ≠ legal motherhood.

The Surrogacy (Regulation) Act, 2021 specifically defines gestational surrogacy as implantation of an embryo in the surrogate's womb where the child is not genetically related to the surrogate mother.

3. Statutory Framework

A. Assisted Reproductive Technology (Regulation) Act, 2021

The ART Act came into force on 25 January 2022. Its purpose is regulation of ART clinics and banks and ensuring safe and ethical ART practices.

The most important provisions concerning parentage are:

Section 22 — Written informed consent

The clinic cannot perform ART treatment without the written informed consent of the parties seeking ART.

Consent is particularly important because ART deliberately creates circumstances where the person providing genetic material may not be the person who assumes legal parenthood.

The Act also permits withdrawal of consent before transfer of embryos/gametes into the woman's uterus.

Section 23 — Record keeping

ART clinics and banks must maintain accurate records.

This is crucial to parentage certainty because the legal system must be able to establish:

• whose gamete was used;
• which embryo was created;
• what consent was given;
• which commissioning person/couple underwent treatment;
• what procedure occurred.

Section 24 — Duties concerning gametes and embryos

This further strengthens the chain of identification and accountability.

Section 25 — Pre-implantation genetic diagnosis

The Act regulates genetic testing at the embryo stage.

Section 27 — Sourcing of gametes

The Act regulates donor gametes and ART banks.

Section 28 — Storage and handling

Security, identification and record maintenance of gametes and embryos are legally regulated.

Section 31 — Rights of child born through ART

This is the key parentage provision:

the ART child is deemed to be the biological child of the commissioning couple.

And:

the donor relinquishes parental rights.

Legal significance

Section 31 is extremely important because it creates legal parentage independent of ordinary genetic parentage.

4. Surrogacy (Regulation) Act, 2021

The Surrogacy Act complements the ART Act.

It regulates gestational surrogacy and requires, among other things:

• medical indication;
• recommendation by the appropriate authority;
• essentiality certificate;
• eligibility certificate;
• court order concerning parentage and custody;
• insurance protection for the surrogate;
• altruistic rather than commercial surrogacy;
• prohibition on the surrogate providing her own gametes.

Section 4 specifically requires an order concerning parentage and custody of the child to be born through surrogacy.

Thus, the legislation seeks to create parentage certainty before or around the birth, rather than leaving the child in a legal vacuum after birth.

5. Bharatiya Sakshya Adhiniyam, 2023 — Presumption of Legitimacy

A second important body of law concerns children born during marriage.

Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) provides that where a person is born during the continuance of a valid marriage, or within 280 days after dissolution while the mother remains unmarried, the birth is conclusive proof of legitimacy unless non-access is shown.

This provision corresponds substantially to the old Section 112 of the Indian Evidence Act, 1872.

Therefore, Indian law traditionally gives strong protection to the child's legitimacy.

This creates an important tension:

DNA may indicate biological non-parentage, while the law may recognise marital/legal parentage.

ART makes this tension even more complicated because a husband may knowingly consent to donor sperm.

In such a case, a DNA test could show that he is not the genetic father—but that does not automatically mean that he is not the child's legal father.

6. DNA Testing and Parentage

DNA testing has very high scientific value for establishing biological parentage.

But Indian courts have repeatedly said:

The scientific ability to conduct a DNA test does not mean that a court should automatically order one.

The court must consider:

1. whether paternity is directly in issue;
2. whether other evidence is available;
3. whether DNA testing is necessary;
4. privacy and dignity;
5. the child's welfare;
6. possible stigma and inheritance consequences.

This is particularly important in ART cases.

7. Goutam Kundu v. State of West Bengal

Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418

This is one of the foundational Indian cases concerning blood/DNA testing and paternity.

The Supreme Court adopted a cautious approach toward compelling blood tests and emphasised the statutory presumption of legitimacy.

Principle

A person cannot ordinarily demand a blood test merely to establish or disprove paternity.

The court must have sufficient justification before interfering with the statutory presumption.

Relevance to ART

The principle becomes even stronger in donor-assisted reproduction.

If a husband consented to donor sperm IVF, a later DNA test showing absence of genetic relationship does not necessarily displace his legal status as father.

8. Kamti Devi v. Poshi Ram

Kamti Devi v. Poshi Ram, (2001) 5 SCC 311

The Supreme Court considered the relationship between DNA evidence and the statutory presumption of legitimacy.

The Court gave substantial protection to the presumption under the then Section 112 Evidence Act.

The important principle is:

biological truth and legal legitimacy are not always identical concepts.

This is particularly relevant to ART because ART can create a situation where:

• biological father = donor;
• legal father = husband/commissioning father.

Therefore, biological truth does not automatically determine legal parentage.

The Supreme Court's later jurisprudence has distinguished cases concerning whether a DNA test should be ordered from cases where a DNA report is already validly on record.

9. Sharda v. Dharmpal

Sharda v. Dharmpal, (2003) 4 SCC 493

The Supreme Court recognised that a court possesses power in appropriate circumstances to direct medical examination, including scientific testing.

However, the power must be exercised judicially.

This case is important because it demonstrates that:

the right to bodily autonomy/privacy is important, but it is not an absolute barrier to every medically relevant judicial examination.

The later Supreme Court jurisprudence has developed this principle further by imposing greater emphasis on necessity, proportionality and the child's interests.

10. Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik

Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576

This is one of the most important DNA-paternity cases.

The husband questioned whether he was the biological father. A DNA test was conducted, and the result excluded him as the biological father.

The Supreme Court held that, in the circumstances of that case, the DNA result could not simply be ignored in favour of the statutory presumption.

But there is an important qualification

The later decision in Ivan Rathinam v. Milan Joseph explained that Nandlal must not be misunderstood as laying down a rule that DNA tests should routinely be ordered.

In Nandlal, the parties had consented to the test; the central issue before the Supreme Court concerned the evidentiary effect of the resulting DNA report.

ART significance

Suppose a husband knowingly consents to donor sperm IVF.

A DNA test could establish:

“He is not the genetic father.”

But that does not necessarily establish:

“He is not the legal father.”

That distinction is fundamental.

11. Dipanwita Roy v. Ronobroto Roy

Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365

The Supreme Court permitted DNA testing in the particular matrimonial circumstances before it.

The case is important because it shows that DNA testing can be ordered where it is directly relevant to determining an issue in litigation.

However, Dipanwita Roy is not authority for automatic DNA testing in every paternity dispute.

The subsequent Supreme Court jurisprudence has emphasised that the circumstances of each case must be considered.

12. Aparna Ajinkya Firodia v. Ajinkya Arun Firodia

This is a particularly important modern decision.

The Supreme Court cautioned against casually directing DNA testing of children because paternity disputes can seriously affect:

• identity;
• dignity;
• legitimacy;
• inheritance;
• family relationships;
• psychological welfare.

The Court observed that children should not be treated merely as objects of forensic investigation.

Most importantly for ART, the Supreme Court recognised that some children may have been conceived through:

• sperm donation;
• IUI;
• IVF.

A DNA test could therefore produce a result that is scientifically correct but legally and socially misleading.

Why this is extremely important

Imagine:

Husband + wife → donor sperm → IVF → child

DNA test:

Husband ≠ genetic father.

But legally:

Husband may still be the child's father because he consented to ART and the statute recognises the commissioning couple as parents.

Thus:

DNA certainty ≠ parentage certainty.

13. Ivan Rathinam v. Milan Joseph — Major Modern Principle

Ivan Rathinam v. Milan Joseph, 2025 INSC 115

This is one of the most important recent decisions for DNA-based parentage disputes.

The Supreme Court dealt with a claim by a person asserting that a particular man was his biological father.

The Court examined:

• paternity;
• legitimacy;
• DNA testing;
• privacy;
• dignity;
• the child's interest in knowing biological parentage.

The judgment states that there must be a “balance of interests” and asks whether there is an “eminent need” for DNA testing.

Two-stage approach

The Court essentially requires:

First: Is existing evidence insufficient?

Second: If so, does the balance of interests justify DNA testing?

Therefore:

DNA testing is not a routine discovery mechanism.

This is particularly relevant to reproductive technology because the court must distinguish between:

biological identity and legally established parentage.

14. 2026 Supreme Court Position

The Supreme Court has continued to refine this approach.

In a May 2026 judgment, the Court reiterated that merely disputing paternity does not automatically justify DNA testing.

It stated that parties should ordinarily lead evidence first and that DNA testing may be directed where the controversy cannot otherwise be resolved and the test is indispensable.

The Court specifically emphasised the consequences for children, including:

• social stigma;
• inheritance consequences;
• identity issues.

Thus, the current approach can be summarised as:

Exceptional necessity, not routine DNA testing.

15. K.S. Puttaswamy v. Union of India — Constitutional Foundation

Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1

The Constitution Bench recognised privacy as a fundamental right under Article 21.

Privacy includes:

• bodily privacy;
• informational privacy;
• decisional autonomy;
• family life;
• marriage;
• procreation;
• reproductive choices.

The Court specifically connected privacy with autonomy and decisions concerning procreation.

Application to ART

ART involves extremely intimate information:

• infertility;
• donor identity;
• genetic information;
• reproductive history;
• medical procedures;
• embryo information;
• gamete information.

Consequently, compelled disclosure of ART history or compulsory DNA testing can engage Article 21 privacy.

Therefore:

Parentage litigation must balance the search for biological truth against privacy, dignity and the child's best interests.

16. Baby Manji Yamada v. Union of India

Baby Manji Yamada v. Union of India, (2008) 13 SCC 518

This is a landmark Indian surrogacy case.

The Supreme Court discussed the nature of surrogacy and recognised it as a method of reproduction in which a woman carries a pregnancy for another person/couple.

The case is historically significant because it arose before the comprehensive 2021 statutory framework.

The Supreme Court's later surrogacy jurisprudence continues to refer to Baby Manji Yamada when explaining the development of Indian surrogacy law.

Importance

It demonstrates the transition from:

pre-2021 judicial/guideline-based regulation

to:

statutory regulation under the ART Act + Surrogacy Act.

17. Surrogacy and the Question: Who Is the Mother?

Surrogacy produces at least three possible concepts of motherhood:

1. Genetic mother

The woman whose oocyte created the embryo.

2. Gestational mother

The woman who carries and gives birth to the child.

3. Legal/intended mother

The woman recognised by law as the child's parent.

In traditional reproduction, these are generally the same woman.

In gestational surrogacy, they may be different.

Indian law therefore cannot rely solely on the biological fact of childbirth.

The Surrogacy Act expressly conceptualises gestational surrogacy as one where the surrogate is not genetically related to the child, and the statutory procedure provides for parentage/custody arrangements.

18. Rajeev Verma v. Mali Tamang

Rajeev Verma & Anr. v. Mali Tamang & Anr. (Delhi District Court, 2015)

This case is useful historically because the court considered the then ICMR ART Guidelines.

The judgment referred to the principle that:

• ART child is treated as legitimate child of the couple;
• sperm/oocyte donors have no parental rights;
• the child has rights to support and inheritance from the intended parents.

However, this was decided before the ART Act, 2021, so it should now be read primarily as historical judicial treatment rather than as the present statutory source of the rule.

The current statutory position is much stronger because Section 31 ART Act expressly addresses the child's rights and donor's relinquishment of parental rights.

19. Recent Supreme Court Surrogacy Jurisprudence

In 2025 INSC 1209, the Supreme Court considered the transition between the earlier ICMR regime and the Surrogacy (Regulation) Act, 2021.

The Court noted that before the 2021 Act, the 2005 ICMR Guidelines were the principal framework governing ART/surrogacy and that the subsequent legislation materially changed the regulatory structure.

The case is important for understanding transitional rights, particularly where reproductive procedures had already commenced before statutory changes.

This shows another dimension of parentage certainty:

reproductive rights and parentage arrangements cannot always be viewed independently of the date on which the ART/surrogacy process commenced.

20. Usha Singh v. State of Chhattisgarh — 2026

A particularly interesting 2026 Supreme Court matter concerns an alleged mix-up of children following IVF.

According to the record, a couple alleged that after IVF treatment, one child had been swapped at the centre. DNA profiling allegedly showed that one of the twins did not possess the gene pool of either parent.

The case illustrates why ART clinics' duties concerning:

• identification;
• record keeping;
• embryo handling;
• chain of custody;
• gamete identification;

are essential to parentage certainty.

This is perhaps the clearest practical demonstration that parentage certainty in ART requires institutional traceability, not merely post-birth DNA testing.

21. Three Different Types of “Parentage”

For examination purposes, this distinction is extremely useful.

A. Genetic parentage

Determined through biological/genetic relationship.

Example:

Sperm donor → genetic father.

DNA is normally relevant here.

B. Gestational parentage

Determined by pregnancy and childbirth.

Example:

Surrogate → gestational mother.

But in gestational surrogacy, she may have no genetic relationship to the child.

C. Legal/intentional parentage

Determined by:

• statute;
• consent;
• intention to parent;
• court order;
• marital relationship;
• statutory presumptions.

Under the ART Act, this is especially important because Section 31 recognises the commissioning couple as the child's parents even where a donor supplied genetic material.

22. The Central Principle: “Genetic Truth” Is Not Always “Legal Truth”

This is the key conceptual proposition.

Consider:

Wife's egg + donor sperm + husband's consent + IVF

Genetic reality:

Donor = biological father.

Legal reality:

Husband/commissioning father = legal parent.

Therefore:

DNA test → biological certainty

but

ART consent + statutory law → legal parentage certainty.

This distinction prevents a donor from later asserting parental rights merely because his DNA is present.

23. Can a Donor Claim Parental Rights?

Under Section 31 ART Act:

No.

The donor relinquishes parental rights concerning children born from the donated gamete.

Therefore:

Genetic contribution alone does not create legal parenthood.

This is one of the most significant departures from traditional paternity law.

24. Can the Intended Parent Deny Parenthood After Birth?

This is where consent becomes crucial.

If an intended/commissioning parent knowingly consented to ART using donor material, the argument that:

“DNA proves I am not the biological parent, therefore I am not the legal parent”

is substantially weakened by the statutory scheme.

The whole purpose of Section 31 is to protect the child's parentage and prevent donor-assisted reproduction from producing continuing uncertainty over who the legal parents are.

25. DNA Test: When Can the Court Order It?

The modern position can be expressed as a test:

Step 1 — Is parentage directly in issue?

If paternity is only collateral to another dispute, DNA testing is less likely to be justified.

Step 2 — Is there other evidence?

The court should consider:

• marriage;
• access/non-access;
• medical records;
• ART records;
• consent forms;
• clinic records;
• birth records;
• admissions;
• existing genetic evidence.

Step 3 — Is DNA indispensable?

If ordinary evidence can resolve the matter, DNA may not be necessary.

Step 4 — Balance competing interests

The court considers:

• child's identity;
• privacy;
• dignity;
• inheritance;
• legitimacy;
• emotional consequences;
• social stigma;
• reproductive privacy.

Step 5 — Best interests

The test should not be ordered merely because one litigant wants biological confirmation.

This approach flows from Ivan Rathinam, Aparna Ajinkya Firodia, and the later 2026 Supreme Court reiteration.

26. ART Changes the Traditional DNA Analysis

Traditional paternity dispute:

Husband says: “I am not the biological father.”

Court asks:

“Was there non-access?”

ART dispute:

Husband says: “I am not genetically related because donor sperm was used.”

Court must first ask:

“Did he consent to donor-assisted reproduction?”

If yes, the legal issue is fundamentally different.

The court is no longer simply deciding biological paternity.

It is deciding:

Who is the legally recognised parent under the ART statutory framework?

27. Parentage Certainty and the Child's Right to Identity

There are two competing interests.

Interest 1 — Right to know biological origins

A child may have legitimate reasons to know:

• genetic ancestry;
• medical history;
• biological origin;
• genetic risks.

Interest 2 — Stability of legal family

The child also has an interest in:

• stable parentage;
• maintenance;
• inheritance;
• family identity;
• emotional security;
• protection from stigma.

The Supreme Court's DNA jurisprudence recognises both interests.

This is why Ivan Rathinam speaks of balancing the child's interest in knowing biological parentage with privacy, dignity and the interests of the other parties.

28. Parentage Certainty and Privacy

ART records contain highly sensitive information.

For example:

“Child was conceived through donor sperm.”

Disclosure can affect:

• the child;
• intended father;
• intended mother;
• donor;
• family relationships.

Under Puttaswamy, reproductive and family decisions fall within constitutionally protected privacy/autonomy.

Thus, courts must avoid converting every paternity dispute into an unrestricted investigation of a family's reproductive history.

29. Clinic Liability and Parentage Certainty

Parentage certainty is also an institutional responsibility.

The ART Act requires clinics/banks to maintain accurate records and regulates:

• identification;
• storage;
• handling;
• sourcing of gametes;
• embryo procedures;
• consent.

A clinic error can therefore produce:

• wrongful parentage;
• wrongful birth records;
• inheritance disputes;
• medical-history problems;
• psychological injury;
• criminal/civil proceedings.

The 2026 Usha Singh matter demonstrates the seriousness of alleged IVF child/embryo mix-ups.

30. Parentage Certainty — A Useful Legal Formula

For examination purposes, you can remember:

Parentage in ART = Genetics + Consent + Intention + Statute + Judicial Protection of the Child's Best Interests.

But these elements do not have equal weight in every case.

In donor ART:

Consent + statute may prevail over genetics.

In surrogacy:

Statutory procedure + intended parentage + court order may prevail over gestational motherhood.

In ordinary marital paternity:

Statutory presumption of legitimacy remains extremely important.

In exceptional paternity litigation:

DNA evidence may become decisive where the court lawfully orders testing and the result is relevant.

31. Important Case-Law Timeline

32. Critical Legal Issues for an Exam/Research Answer

A high-quality answer should discuss these eight issues:

1. Genetic parentage vs legal parentage

DNA does not necessarily determine legal parenthood.

2. Consent

ART is fundamentally consent-based; Section 22 requires written informed consent.

3. Donor's status

The donor provides genetic material but relinquishes parental rights under Section 31.

4. Surrogate's status

Gestational surrogate may carry and deliver the child without being genetically related to it.

5. Presumption of legitimacy

Section 116 BSA protects legitimacy of a child born during a valid marriage, subject to the statutory exception.

6. DNA testing

It is not automatic; the modern test focuses on necessity and balancing of interests.

7. Privacy

ART information engages Article 21 privacy and reproductive autonomy.

8. Best interests of the child

The ultimate concern is not simply discovering biological truth but protecting the child's identity, dignity, welfare and legal rights.

33. Conclusion

The Indian legal position has moved from a biology-centred concept of parentage toward a more sophisticated model recognising intentional and statutory parentage in assisted reproduction.

The most important proposition is:

In ART, genetic parentage and legal parentage can be different, and the law does not necessarily treat DNA as the final determinant of parenthood.

The ART Act, 2021, particularly Section 31, provides statutory certainty by recognising the child as the child of the commissioning couple and removing parental rights from the donor. The Surrogacy Act, 2021 similarly establishes a regulated framework for determining parentage in gestational surrogacy.

At the same time, BSA Section 116 preserves the traditional protection of legitimacy, while Supreme Court decisions such as Goutam Kundu, Kamti Devi, Sharda, Nandlal, Dipanwita Roy, Aparna Ajinkya Firodia and Ivan Rathinam establish that DNA testing must be approached with caution.

The contemporary position can therefore be stated as:

“Biological truth is relevant, but legal parentage in reproductive technology is ultimately determined through the combined operation of statute, consent, intention, evidence, privacy, and the best interests and dignity of the child.”

For a law-school/LLM answer, the strongest authorities to cite are: Baby Manji Yamada, Nandlal Wasudeo Badwaik, Sharda, Aparna Ajinkya Firodia, Ivan Rathinam, K.S. Puttaswamy, Section 31 ART Act, Section 4 Surrogacy Act and Section 116 BSA.