Cryopreserved Pre-Embryos: An Exordium to the Person or Property Discourse in Indian Legal Context

Abstract

Scientific advancements in reproductive technology allow couples to combat problems with conception through various alternatives in assisted reproduction. However, with the advancement of science and technology, particularly in assisted reproductive technologies (ART) and the infertility business, several specific questions are posed, largely overshadowed bylegal and ethical dilemmas. From the Indian legal context, this paper attempts to address the recent legal question of whether a cryopreserved preembryo is to be considered a person or a property. Exploring the status of a cryopreserved pre-embryo, the paper delves into a debate ofwhether the cryopreserved pre-embryo is to be treated as a person, thereby applying family law principles; or as property by applying property law jurisprudence while determining the pre-embryo ownership, particularly in a situation where the partners involved in the creation of the pre-embryo intend to dissolve their marriage. The present research does not attempt to resolve the controversies; instead, it analyzes the extent of legal recognition given to a pre-life form across various legislations in India. By perusing different judicial approaches, such as the right to life position, the property approach, and the special respect position that have been elucidated in several foreign judgements dealing with this issue, an effort has been made to highlight the legal dilemmas in this area. In conclusion, the paper suggests strict regulations to prohibit the commercialization of embryos because of public welfare concerns stemming from cryopreservation, and advances the argument in favour of the special respect position of cryopreserved embryoacknowledging the personhood analysis.