Bombay HC calls on surrogacy board to consider Pune woman's plea to freeze eggs without husband's consent

Court orders National ART Board to assess woman's plea for egg freezing, highlighting reproductive rights issues.

The Bombay high court last week ordered the National Assisted Reproductive Technology (ART) and Surrogacy Board to consider an application filed by a Pune resident for permission to freeze her eggs without her husband’s consent, which is required under the ART act. The petitioner’s estranged husband had refused permission, and the family court rejected the petition in January on the ground that the constitutional validity of her plea needed to be examined by a constitutional court.

The petitioner’s estranged husband had refused permission, and the family court rejected the petition in January (Birla Fertility & IVF)

A division bench of Acting Chief Justice Ravindra Ghuge and Justice Gautam Ankhad passed the order after additional government pleader Jyoti Chavan suggested that the appropriate authorities would consider her plea if the petitioner filed a proper application. The bench has asked the National Board to decide on the plea in three weeks.

The court, however, kept the woman’s petition pending after her counsel, Advocate Sushant Inderjeet Singh, pointed out that she was fighting a legal battle with her husband, and her divorce petition filed in August 2020 was still pending before the family court in Pune.

Petitioner cites declining fertility and reproductive autonomy

Advocate Singh argued that the petitioner was 39 years old and her fertility level was dropping. If it dropped further, he pointed out, she would be unable to bear a child, and therefore, now was the right time to freeze the eggs, ensuring motherhood for her in the future.

The petitioner got married in April 2016, but was allegedly subjected to mental and physical cruelty, prompting her to leave her husband in June 2020. Apart from filing criminal proceedings against him, she also filed a divorce petition two months later.

The petitioner said that she had initiated medical consultations and preparations for the egg-freezing procedure from January 2024. After her doctor advised her to freeze her eggs, she filed a plea before the family court in September 2025, seeking permission to undergo the egg-freezing procedure independent of her husband who had categorically refused consent unless she withdrew all the legal proceedings she had initiated against him.

The petitioner contended that the statutory framework governing ART mandated spousal consent, and a woman whose marriage had irretrievably broken down and whose divorce proceedings had remained pending for several years could not be compelled to permanently lose her reproductive ability.

“The insistence on spousal consent for a time-sensitive medical procedure… effectively grants the husband a veto over her reproductive future and results in a continuing violation of her fundamental rights to reproductive autonomy, bodily integrity, decisional privacy, dignity and equality guaranteed under Articles l4 and 2l of the Constitution of India,” stated her petition.

Court raises wider questions on egg freezing under ART law

The bench found force in the submission of her counsel that when divorce proceedings were on and the husband did not want the marriage to survive, he would never give consent for the freezing of his wife’s eggs. “We find that the petitioner has put forth an arguable case,” the judges said while allowing the petitioner to amend the petition and incorporate the larger issues pertaining to the fundamental rights of women.

The judges felt it necessary to examine what happened in the case of unmarried women diagnosed with falling fertility levels who desired to freeze their eggs so that they could utilise them whenever they got married. “Is there any provision under the said Act which would enable them to freeze their eggs to give birth to a child in future?” the judges asked and posted the matter for further hearing on August 31.