Reproductive Justice and Access to Assisted Reproductive Technologies: A Comparative Constitutional Analysis

Abstract

The concept of reproductive justice has undergone a profound transformation from a narrow discourse centred upon reproductive autonomy to a comprehensive human rights framework encompassing equality, dignity, privacy, health, and substantive access to reproductive healthcare. Advances in Assisted Reproductive Technologies (ART), including in vitro fertilisation (IVF), gamete donation, embryo cryopreservation, surrogacy, mitochondrial replacement therapy, and preimplantation genetic testing, have significantly expanded the possibilities of parenthood. Simultaneously, these developments have generated complex constitutional and ethical questions concerning bodily autonomy, reproductive liberty, equality before law, discrimination, commercialization of reproduction, parentage, and children's rights. Constitutional democracies have responded to these challenges through divergent legal approaches shaped by their respective constitutional cultures and human rights traditions.

This paper undertakes a comparative constitutional analysis of reproductive justice and access to Assisted Reproductive Technologies by examining the constitutional frameworks of India, the United States, the United Kingdom, Canada, South Africa, Germany, and the jurisprudence of the European Court of Human Rights. It critically analyses the constitutional guarantees relating to privacy, dignity, equality, non-discrimination, reproductive autonomy, and the right to health while evaluating the legislative responses governing ART and surrogacy.

Special emphasis is placed upon India's evolving constitutional jurisprudence following Justice K.S. Puttaswamy v. Union of India, the enactment of the Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021. The paper argues that although India has taken significant legislative steps to regulate reproductive technologies, several statutory restrictions remain constitutionally vulnerable for disproportionately limiting access by unmarried persons, LGBTQIA+ individuals, and certain categories of intending parents.

Through doctrinal and comparative analysis, this paper proposes a rights-oriented constitutional framework that harmonises reproductive autonomy with legitimate state interests in protecting women, children, and ethical medical practices. It concludes that reproductive justice should be recognised not merely as an extension of reproductive rights but as an indispensable component of constitutional democracy grounded in dignity, equality, and substantive freedom.