When Does an Embryo Become a Human?

The legal legitimacy of research on the human embryo conceived in the context of medically assisted procreation in light of current legal developments

Research on the human embryo conceived in the context of medically assisted procreation, and which are no longer the subject of a parental project, aims to develop the technology of medically assisted procreation. But the doctrine is divided on the question of the legitimacy of this research. The source of this division is the legal status of the embryo. Is it a thing or is it a person? If the embryo is a person, research on it is, in principle, prohibited; whereas if the embryo is considered a thing, this research is permitted. Medically assisted procreation raises many ethical, religious and legal problems, the most important of which is the fate of embryos conceived in the context of medically assisted procreation, and which are no longer the subject of a parental project. The question has arisen as to whether these embryos could be the subject of research.

ASSISTED REPRODUCTIVE TECHNOLOGY AND HUMAN RIGHTS: A LEGAL AND ETHICAL ANALYSIS

On the eve of the twenty first century, India is at a tipping point in the regulation of Assisted Reproductive Technology (ART) with two legislation Acts namely, the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021. This formally introduced the idea of regulation in a space that was previously largely unregulated for more than four decades. This review research paper aims to explore and examine the legal and ethical implications of ART in light of ‘human rights’, with a comprehensive analysis, while questioning the ability of the regulatory framework to ensure the reproductive autonomy, dignity and equality of every individual seeking the aid of ART. Based on a systematic review of the constitutional jurisprudence, landmark Court judgments of Indian Supreme Court and various High Courts, as well as peer-reviewed scholarly literature and state-wise epidemiological data, the current research suggests that the 2021 Acts, though a significant improvement normatively, also have constitutionally questionable and ethically unsound structural exclusions, in particular of LGBTQ+ citizens, single fathers, widowed and divorced women, and economically marginalised groups. Specifically, the above cases: Baby Manji Yamada vs Union of India (2008), Jan Balaz vs Anand Municipality (2009), Suchita Srivastava vs Chandigarh Administration (2009), K.S. Puttaswamy vs Union of India (2017), and Arun Muthuvel vs Union of India (2022-2025)– indicate a court that is becoming more open-minded to the idea of reproductive rights as fundamental constitutional rights. The paper also calls for a legislative reform, based on rights that places human dignity, autonomy and substantive equality at its heart.

IN VITRO FERTILIZATION: COMPARATIVE EXPERIENCES FROM SELECTED COUNTRIES AND LESSONS

(Bio)ethical dilemmas of posthumous parenthood from frozen embryos

The authors attempt to address several important questions, including the ethical justification and legal certainty of posthumous parenthood, as well as the ethical and medical legitimacy of certain procedures involving unused embryos.

)ETHICAL DILEMMAS OF POSTHUMOUS PARENTHOOD FROM FROZEN EMBRYOS 3

Embryonic Option-Hood

A frozen embryo represents not merely a potential human life but a deferred decision to trigger this potential. Parties value this opportunity for deferral because it allows them to retain the option to attempt conception after any uncertainty about future events or desires has resolved. Failing to recognize this “option value” of embryos has resulted in confusion over the best approach to allocating ownership of embryos and calculating damages for reproductive harms. This Article provides a novel paradigm showing that embryos should be treated as neither persons nor mere property; instead, a significant portion of their value is in their ability to preserve and defer decisions regarding implantation. When such embryonic “option-hood” is overlooked, society risks improperly allocating disposition rights and undercompensating patients who were deprived of this option. Given this insight, this Article makes two significant contributions. First, this Article proposes a modified approach to embryo disposition that validates—rather than undermines—the option value of embryos. Currently, in the absence of a valid contract, most courts balance party interests at the time of conflict. Because this approach is not focused on party expectations at the time of embryo creation, reliance on the traditional balancing test can essentially destroy the option value of embryos. This Article adds an intermediate step before resorting to balancing, which requires the court to make a fact-intensive determination of whether there was an agreed-upon disposition at the time of embryo creation. In the absence of evidence of original intent, this Article proposes a modified version of the traditional balancing test courts have used. Second, acknowledging the option value of embryos sheds light on how to calculate damages in different contexts. This Article establishes a methodology for determining both the standard of care/regulatory standards necessary to protect embryos, as well as damages for compensating patients for negligence resulting in embryo loss and for intentional interference with embryos. The Article concludes by cautioning that state interference newly allowed by Dobbs can eviscerate the option value of embryos, with upstream effects for embryo creation and fertility care access.