Surrogacy with Engineered Embryos: Legality

Introduction

Surrogacy with engineered embryos refers to a reproductive arrangement in which an embryo created through in-vitro fertilisation (IVF) is genetically modified before being transferred into a surrogate mother's uterus. Genetic engineering technologies, such as CRISPR-Cas9, may be used to alter DNA, potentially prevent inherited diseases or change particular genetic characteristics.

This practice raises serious legal and ethical questions concerning reproductive autonomy, embryo manipulation, informed consent, genetic safety and the rights of children. In India, implantation of genetically modified human embryos for reproductive purposes is prohibited under the applicable national research guidelines. Genetic screening must be distinguished from genetic engineering.

Legal and Regulatory Framework in India

1. Surrogacy (Regulation) Act, 2021: Section 4 regulates permitted surrogacy procedures and eligibility requirements. Section 6 requires the surrogate mother's written informed consent. Section 7 prohibits intended parents from abandoning a child because of genetic defects or medical conditions. Section 8 recognises the surrogate-born child as the biological child of the intending couple or intending woman.

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2. Assisted Reproductive Technology (Regulation) Act, 2021: Section 25 permits preimplantation genetic testing (PGT) only to screen embryos for known, pre-existing, heritable or genetic diseases. It does not authorise genetic alteration of embryos. Section 24 also prescribes duties of ART clinics concerning the use and handling of human embryos.

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3. ICMR–DBT National Guidelines for Stem Cell Research, 2017: Paragraph 8.2.8 restricts genome modification, including gene editing of human embryos, to approved in-vitro studies. Paragraph 8.3 prohibits human germline gene therapy and the use of genome-modified human embryos for developmental propagation. Paragraph 8.3.6 also prohibits implantation of human embryos subjected to in-vitro manipulation into the uterus of humans or primates.

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Important Case Laws

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

The Supreme Court examined legal and parental issues arising from an international surrogacy arrangement. The case highlighted the importance of genetic parentage, custody and the legal protection of children born through surrogacy. Although it did not concern genetically engineered embryos, its principles are relevant to disputes involving reproductive technology and parental responsibility.

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2. Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1

The Supreme Court recognised reproductive choice as an important aspect of personal liberty under Article 21. The judgment is relevant to reproductive autonomy, although it does not establish a right to undertake prohibited genetic engineering.

3. Vijaya Kumari S. v. Union of India (2025 INSC 1209)

The Supreme Court considered whether statutory age restrictions under the Surrogacy (Regulation) Act, 2021 could retrospectively affect couples who had already created and frozen embryos before the Act commenced. It recognised reproductive autonomy under Article 21 and protected qualifying pre-existing surrogacy arrangements. The judgment is relevant to frozen embryos and reproductive rights, but it does not authorise embryo gene editing.

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Major Legal Issues

Genetic modification: Reproductive implantation of genome-edited embryos is prohibited under the 2017 guidelines.

Genetic screening: PGT for known inherited diseases is permitted under Section 25 of the ART Act.

Informed consent: The surrogate mother must understand the medical procedures and associated risks.

Child protection: Genetic abnormalities cannot be used as grounds for abandoning a surrogate-born child.

Medical liability: Unauthorised embryo manipulation or implantation may result in regulatory and other legal consequences.

Conclusion

Surrogacy involving genetically engineered embryos presents significant challenges for Indian reproductive and biotechnology law. The Surrogacy Act, 2021 and ART Act, 2021 regulate reproductive procedures and genetic screening, while the ICMR–DBT Guidelines, 2017 prohibit reproductive use of genome-modified human embryos. Therefore, genetic screening for inherited diseases must be distinguished from genetic engineering. Scientific progress cannot override statutory restrictions, medical ethics or the rights of surrogate mothers and children.