1. Meaning of sperm/embryo custody dispute

A dispute may arise when reproductive material is stored in an IVF/ART clinic and the persons who provided the genetic material subsequently disagree about what should happen to it.

Typical situations include:

• husband wants frozen embryos implanted but wife objects;
• wife wants implantation but husband withdraws consent;
• divorced spouses disagree about frozen embryos;
• one partner dies and the surviving partner seeks use of frozen sperm/embryos;
• one spouse becomes medically incapacitated;
• a person seeks retrieval and preservation of sperm from an incapacitated spouse;
• parties disagree whether embryos should be destroyed, donated or preserved;
• clinic refuses transfer because of statutory eligibility requirements;
• a person claims reproductive autonomy over genetically related embryos;
• parties disagree about what should happen to embryos after separation or divorce.

The legal conflict is therefore usually between:

Reproductive autonomy + genetic parenthood

versus

Autonomy not to become a genetic parent + informed consent.

2. The Indian statutory framework

The most important legislation is the Assisted Reproductive Technology (Regulation) Act, 2021.

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

The Act came into force on 25 January 2022. Its purpose includes regulating ART clinics and banks, preventing misuse, and regulating the safe and ethical practice of ART, including freezing of gametes and embryos.

The provisions particularly relevant to custody disputes include Sections 21–31, especially Sections 22, 23, 24 and 28.

3. Section 22 — Written informed consent

This is probably the single most important provision for an embryo/sperm custody dispute.

Section 22 requires written informed consent from the parties seeking ART.

More importantly, Section 22(2) provides that a clinic or bank cannot cryopreserve human embryos or gametes without specific written instructions and consent from all relevant parties in circumstances such as death or incapacity.

Section 22(3) also requires specific written consent for using human reproductive material to create a human embryo or for using an in-vitro embryo.

And Section 22(4) provides that a commissioning couple may withdraw consent at any time before the embryos or gametes are transferred to the woman's uterus.

Legal significance

This creates an important distinction:

Creation of an embryo does not necessarily mean that one person obtains an unrestricted right to use it.

Consent remains central until the statutory point specified by the legislation.

4. Why consent becomes the central issue

Imagine:

A husband and wife undergo IVF.

Ten embryos are created.

They freeze five embryos.

Later they divorce.

The husband says:

“I want to use the embryos because they are genetically mine.”

The wife says:

“I do not consent to becoming the genetic mother of another child.”

The question is not simply:

“Who owns the embryos?”

It becomes:

Can one person's reproductive autonomy be overridden by another person's desire to become a parent?

This is where international embryo-custody jurisprudence becomes particularly useful.

5. Section 28 — Storage of gametes and embryos

Section 28 regulates storage and handling of human gametes and embryos.

It requires standards concerning:

• security;
• recording;
• identification;
• storage;
• handling.

Section 28(2) provides that donor gametes or embryos are to be stored for not more than ten years, after which they may perish or be donated for research with the required consent and according to the prescribed procedure.

Therefore, a clinic is not simply an ordinary “custodian” of the material.

It has statutory responsibilities regarding:

identity + security + records + consent + storage + authorized use.

6. The constitutional foundation — Article 21

Indian constitutional jurisprudence has increasingly recognized reproductive autonomy as part of personal liberty and privacy under Article 21.

The Supreme Court has explained that decisional autonomy includes intimate personal choices concerning reproduction.

In A v. State of Maharashtra, (2024) 6 SCC 327, the Supreme Court recognized reproductive freedom as a fundamental right under Article 21, as subsequently noted in Vijaya Kumari S.

The Supreme Court has also relied upon earlier privacy jurisprudence, including R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, where privacy was described as encompassing personal intimacies concerning family, marriage, motherhood, procreation and child-rearing.

7. Most important recent Indian Supreme Court case: Vijaya Kumari S. v. Union of India

This is highly relevant to frozen embryos and reproductive autonomy.

Vijaya Kumari S. & Anr. v. Union of India, 2025 INSC 1209, was decided by the Supreme Court on 9 October 2025.

The cases concerned couples who had commenced surrogacy procedures before the Surrogacy (Regulation) Act, 2021 came into force, including couples who had generated and frozen embryos before the new statutory age restrictions became applicable.

The Supreme Court examined whether the new statutory restrictions could retrospectively frustrate reproductive rights already exercised by the couples.

Supreme Court's important reasoning

The Court stated that reproductive decisions form part of decisional autonomy under Article 21.

It further reasoned that the couples had already exercised reproductive autonomy when they generated and froze embryos for the purpose of surrogacy.

Most importantly, the Court treated freezing the embryo with the intention of transferring it to the surrogate as a significant manifestation of the couple's intention to pursue parenthood.

Importance

This case does not decide a conventional divorced-couple “custody battle” over frozen embryos.

But it establishes a very important Indian principle:

The creation and freezing of embryos can be legally significant evidence of the exercise of reproductive autonomy and an intention to pursue parenthood.

That principle can become relevant in future embryo-disposition disputes.

8. T.S. Manjuladevi v. Union of India — Karnataka High Court, 2024

This case is particularly interesting because it directly involved a challenge to Section 22(4) of the ART Act.

The petitioner challenged the provision allowing either member of the commissioning couple to withdraw consent before the embryo or gamete is transferred to the woman's uterus.

The challenge was based upon Articles 14 and 21, including reproductive autonomy.

However, the parties subsequently reached a settlement.

The petitioner consented to destruction of the frozen embryo, and the Karnataka High Court directed its destruction accordingly. Therefore, the constitutional challenge was not finally adjudicated on merits.

Why this case matters

It demonstrates that Section 22(4) has already generated a constitutional controversy concerning the balance between:

• reproductive autonomy;
• consent;
• embryo preservation;
• right to parenthood;
• right not to become a parent.

But it should not be cited as a final judicial determination that Section 22(4) is constitutional or unconstitutional.

9. Parveen v. Union of India — 2026

A particularly significant recent case concerns sperm preservation of an incapacitated husband.

In Parveen v. Union of India, decided in April 2026, the petitioner-wife sought extraction and cryopreservation of her husband's genetic material while he was in a persistent vegetative state.

She argued that:

• the couple had previously decided to undergo IVF;
• her husband's prior consent should be respected;
• she wished to preserve his sperm;
• reproductive autonomy and Article 21 supported the request.

The case directly raised the relationship between prior reproductive consent, medical incapacity and preservation of genetic material.

The judgment is particularly important because it illustrates a difficult question:

Can previously expressed reproductive intention substitute for fresh consent when the genetic contributor becomes medically incapable of providing new consent?

That issue is likely to become increasingly important as cryopreservation technology develops.

10. Shweta Tuteja v. Union of India — 2026

In Shweta Tuteja & Anr. v. Union of India & Ors., the Delhi High Court dealt with five cryopreserved embryos remaining after an unsuccessful frozen embryo transfer.

The couple sought permission for another frozen embryo transfer.

The hospital refused because of the statutory age issue.

The Delhi High Court ultimately permitted the couple to undergo frozen embryo transfer of their remaining five embryos, with medical safeguards, holding that denial solely because they had marginally crossed the age threshold would not further the object of the ART Act in the circumstances.

Importance

This is significant because the court treated existing cryopreserved embryos and the couple's ongoing reproductive project as important considerations.

Again, this is not a divorce custody case, but it demonstrates the judicial willingness to examine frozen embryos in the context of reproductive autonomy rather than treating them simply as ordinary property.

11. Davis v. Davis — United States

One of the world's most famous embryo-disposition cases is:

Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).

A divorcing couple disagreed about the disposition of seven cryopreserved embryos.

The Tennessee Supreme Court rejected the simplistic characterization of embryos as either ordinary property or legal persons.

Instead, it treated them as deserving special respect because of their potential for human life and focused on the competing reproductive interests of the genetic contributors.

The important principle

The Court recognized two competing interests:

Interest A:
The right to become a genetic parent.

Interest B:
The right to avoid becoming a genetic parent.

That second right is extremely important.

For example, a husband may say:

“I want these embryos implanted because they are my only opportunity to have genetically related children.”

But the wife may respond:

“I do not want to become the genetic mother of a child after our divorce.”

Both are reproductive interests.

12. The “balancing test” in embryo disputes

Davis developed an influential approach.

Courts may consider:

First — Existing agreement

Did the couple sign an IVF agreement saying what should happen in the event of:

• divorce;
• death;
• separation;
• disagreement;
• incapacity?

If yes, that agreement may be extremely important.

Second — Relative interests

If there is no clear agreement, the court may weigh:

• desire to reproduce;
• desire to avoid reproduction;
• possibility of alternative reproductive methods;
• whether the embryos are the person's only realistic opportunity for genetic parenthood;
• financial and emotional circumstances.

13. J.B. v. M.B. — New Jersey

Another important American case is:

J.B. v. M.B., 170 N.J. 9, 783 A.2d 707 (2001).

The parties had cryopreserved embryos and later divorced.

The husband wanted to use them to reproduce.

The wife objected.

The New Jersey Supreme Court considered the consent documents but found that they did not provide a sufficiently clear expression of what should happen after divorce.

The court emphasized the importance of prior agreements and the competing reproductive interests of both parties.

The case is particularly significant for the proposition that a person should generally not be forced into genetic parenthood against their wishes.

14. Kass v. Kass — New York

Another major case is:

Kass v. Kass, 91 N.Y.2d 554, 696 N.E.2d 174 (1998).

The New York Court of Appeals emphasized the importance of the parties' written IVF agreement in determining the disposition of stored pre-embryos.

The fundamental question is:

Who has dispositional authority over the embryos?

That approach is highly relevant to modern ART litigation because it places considerable emphasis on the consent document signed before treatment.

15. Evans v. United Kingdom

This is one of the most important international human-rights cases.

Evans v. United Kingdom, Application No. 6339/05, European Court of Human Rights, Grand Chamber, 10 April 2007.

The applicant had undergone IVF with her partner and several embryos were frozen.

She subsequently had both ovaries removed because of cancer.

The relationship later broke down.

Her former partner withdrew consent to the continued use of the embryos.

The embryos represented her only realistic opportunity to have a genetically related child.

She argued that destroying the embryos violated her reproductive and family-life rights.

The European Court nevertheless upheld the legal framework requiring continued consent from both genetic contributors.

Major principle

The case illustrates the enormous conflict between:

Woman's right to genetic motherhood

and

Man's right not to become a genetic father.

The Court accepted that both interests had to be respected.

16. Sperm disputes are somewhat different from embryo disputes

A sperm-custody dispute usually concerns gamete autonomy rather than the disposition of an already-created embryo.

For example:

Situation 1 — Cancer patient

A man freezes sperm before chemotherapy.

Later he dies.

His wife seeks to use the sperm.

The legal questions include:

• Did he give written consent?
• Did he consent to posthumous reproduction?
• What did the storage agreement say?
• Did he identify the intended recipient?
• What does the applicable ART law provide?

Situation 2 — Incapacity

A husband becomes comatose.

The wife seeks sperm extraction.

The question becomes:

Can sperm be retrieved and stored without fresh consent?

This is much more complicated because physical possession of sperm is not equivalent to legal authority to use it for reproduction.

17. Genetic material is not ordinary property

One of the most important conceptual points is that sperm and embryos should not simply be analyzed using conventional property law.

There are at least three competing concepts:

1. Property/control

Who has lawful control over the stored material?

2. Consent

Who authorized its storage and use?

3. Reproductive autonomy

Who has the constitutional/personal right to decide whether they become a genetic parent?

Therefore:

“I paid the IVF bill” does not necessarily mean “I own the embryo and can decide its reproductive use.”

Similarly:

“My sperm is genetically mine” does not automatically mean another person can use it to create a child without the legally required consent.

18. Death of a genetic contributor

Death creates some of the hardest disputes.

Suppose:

• husband freezes sperm;
• husband dies;
• wife wants IVF using his sperm.

Three different legal questions arise:

Question 1

Can the sperm continue to be stored?

Question 2

Can it be removed from storage?

Question 3

Can it actually be used to create an embryo and child?

These are not necessarily the same question.

The consent document may answer them differently.

19. Incapacity

Suppose the husband becomes unconscious.

The wife argues:

“Before the accident, we had decided to have a child.”

The husband cannot now give fresh consent.

The court must potentially examine:

• prior written consent;
• IVF documentation;
• medical records;
• communications between spouses;
• storage agreement;
• ART Act requirements;
• evidence of the couple's reproductive intentions;
• best interests and welfare implications.

The 2026 Parveen litigation demonstrates that this question is now arising directly in Indian courts.

20. Divorce and frozen embryos

This is probably the classic embryo-custody dispute.

Example

A couple has six embryos.

After divorce:

Wife:
“I want implantation.”

Husband:
“I withdraw my consent.”

The court should first examine:

Step 1 — Written agreement

What did they sign when the embryos were created?

Step 2 — Statutory consent

What does Section 22 of the ART Act require?

Step 3 — Constitutional autonomy

Would allowing implantation substantially interfere with one person's reproductive autonomy?

Step 4 — Alternative means

Does the person seeking parenthood have another realistic method of genetic reproduction?

Step 5 — Existing circumstances

What has changed since the original consent?

21. Why “best interests of the child” is different here

This is a crucial examination point.

In an ordinary child-custody case:

Best interests/welfare of the child is normally central.

But in a frozen-embryo dispute, there is no born child whose custody is being decided.

The dispute concerns whether an embryo should:

• be implanted;
• remain frozen;
• be destroyed;
• be donated;
• otherwise be dealt with according to valid consent and law.

Therefore, applying ordinary child-custody principles mechanically can be inappropriate.

The American jurisprudence recognizes this distinction. Davis specifically rejected treating the dispute as an ordinary child-custody determination.

22. Role of IVF consent forms

The IVF consent form can become the most important piece of evidence.

A well-drafted agreement may specify:

“In the event of divorce, embryos shall be destroyed.”

Or:

“In the event of death of one partner, embryos may be used by the surviving partner.”

Or:

“Both parties must provide continuing consent before implantation.”

Or:

“Embryos may be donated for research.”

The more specific the agreement, the less uncertainty there may be.

The international cases such as Kass, Davis and J.B. demonstrate why these agreements are so important.

23. What happens when the consent form is ambiguous?

Suppose the form says:

“Embryos will be stored for future use.”

But it says nothing about divorce.

Then one spouse later wants implantation and the other objects.

The court may need to consider:

• wording of the agreement;
• surrounding circumstances;
• parties' intentions;
• subsequent communications;
• statutory consent requirements;
• reproductive autonomy.

This is why clear advance directives are extremely important in ART.

24. Role of the IVF clinic

The IVF clinic is not merely a passive storage facility.

Under the ART Act, clinics and banks have statutory responsibilities concerning:

• consent;
• records;
• identification;
• storage;
• handling;
• security;
• use of reproductive material.

Sections 21–24 and Section 28 are particularly relevant.

A clinic should therefore be able to establish:

• whose sperm/eggs created the embryo;
• embryo identification;
• consent forms;
• storage period;
• authorized users;
• instructions concerning death/incapacity;
• transfer authorization;
• destruction authorization.

25. What if a clinic releases embryos to the wrong person?

That could create a very serious medico-legal issue.

For example:

Embryo A belongs to Couple A.

Because of an identification error, the clinic transfers it to Couple B.

Potential issues include:

• negligence;
• breach of statutory duties;
• informed-consent violation;
• privacy/confidentiality;
• professional misconduct;
• compensation;
• parentage litigation;
• potentially criminal consequences depending on the conduct and applicable law.

The ART Act specifically imposes duties concerning accurate records and storage/handling.

26. Evidence required in an embryo/sperm custody case

A court would typically benefit from:

Medical evidence

• IVF treatment records;
• embryology reports;
• sperm collection records;
• egg retrieval records;
• fertilization records;
• embryo grading;
• cryopreservation records.

Consent evidence

• IVF consent form;
• embryo storage agreement;
• sperm storage agreement;
• death/incapacity instructions;
• posthumous reproduction consent;
• withdrawal-of-consent documents.

Electronic evidence

• emails;
• WhatsApp/messages;
• clinic communications;
• electronic consent records.

Legal evidence

• marriage/divorce records;
• wills;
• nomination documents;
• court orders.

Clinic evidence

• storage register;
• identification records;
• transfer records;
• destruction records;
• temperature/storage logs;
• authorization records.

27. Important legal issues to discuss in an examination

A strong answer should identify eight major issues:

1. Who has legal control over the sperm/embryo?
2. Was there valid informed consent?
3. Can consent be withdrawn?
4. What happens after divorce?
5. What happens after death?
6. What happens after incapacity?
7. Does reproductive autonomy override the other person's objection?
8. What responsibility does the ART clinic have?

28. Comparison of important cases

The Indian cases are particularly important because the ART Act has created a statutory framework that was largely absent from earlier Indian reproductive disputes.

29. A hypothetical Indian case

Facts

A and B are married.

They undergo IVF.

Eight embryos are created.

Six are frozen.

They subsequently divorce.

A wants two embryos transferred to B.

B refuses.

A argues:

“I have a fundamental right to become a parent.”

B argues:

“I have a fundamental right not to become a parent against my wishes.”

Court's approach

The court may examine:

First: What did their IVF consent agreement say?

Second: What does Section 22 of the ART Act require?

Third: Has consent been withdrawn before transfer?

Fourth: Would implantation impose genetic parenthood upon the objecting party?

Fifth: Does either party have alternative reproductive options?

Sixth: What is the effect of Article 21 reproductive autonomy?

The court should not simply ask:

“Who wants the embryo more?”

The more sophisticated question is:

Whose legally protected reproductive autonomy would be more seriously impaired by the proposed disposition, subject to the parties' prior agreement and the statutory framework?

30. The most important legal principle

The emerging jurisprudence can be summarized as:

Consent + reproductive autonomy + prior agreement + statutory regulation

rather than simply:

Ownership + possession.

An embryo is therefore not easily treated like an ordinary item of property.

Similarly, genetic connection alone does not necessarily establish an unrestricted right to reproductive use.

31. Conclusion

Sperm and embryo custody disputes represent a conflict between technology, autonomy, consent, family law, constitutional rights and medical regulation.

In India, the ART Act, 2021 is now the principal statutory framework. Section 22 makes informed consent central, while Section 28 regulates storage and handling.

The constitutional foundation is Article 21 and reproductive autonomy. Recent Supreme Court jurisprudence has expressly recognized reproductive decision-making as part of decisional autonomy and has given considerable importance to reproductive choices already exercised through the creation and freezing of embryos.

International cases—particularly Davis v. Davis, Kass v. Kass, J.B. v. M.B., and Evans v. United Kingdom—provide useful comparative principles concerning consent, prior agreements, the right to procreate and the right not to procreate.

For an Indian medico-legal answer, the strongest proposition is therefore:

A dispute concerning stored sperm or embryos should primarily be determined through the combined framework of valid informed consent, the parties' prior ART agreement, statutory requirements under the ART Act, and the constitutional protection of reproductive autonomy, rather than by treating the reproductive material as ordinary property or applying conventional child-custody principles.

This is an academic legal explanation, not case-specific legal advice. For an actual custody/embryo dispute, the exact consent forms, dates, clinic records and applicable current regulations can materially change the legal position.