Frozen Embryos, Stored Sperm and Surrogacy: What Happens If You Die? A New Inheritance Question for Indian Families

Indian families are rapidly embracing IVF, embryo freezing and surrogacy, but their wills and legal documents are still stuck in an older world. Many couples now have frozen embryos or stored sperm and eggs in clinics across India—yet almost none have written down what should happen to this genetic material, or to any child born from it, if one of them dies.dhyeyaias+3

This blog explains, in simple language, how India’s new surrogacy and ART rules work, what recent court cases say about posthumous reproduction, and how to reflect all of this in a modern Indian will.surrogacylawyerindia+1

Why IVF, Freezing and Surrogacy Now Matter for Wills

Over the last decade, IVF, ICSI, egg freezing and embryo freezing have become much more common, not just for older couples but also for young professionals delaying parenthood or preserving fertility before cancer treatment. Surrogacy, though heavily regulated now, remains an important route for couples facing medical infertility.ivfsurrogacy+2

This new reality creates questions that traditional wills never had to answer, for example:dhyeyaias+1

If one spouse dies, can the other still use frozen embryos?
If a child is born after a parent’s death, will that child inherit like other children?
Who decides what happens to unused embryos or stored sperm when a person passes away?

Courts, clinics and families are already grappling with such questions in real cases, which is why proactive planning has become essential.surrogacylawyerindia+1

A Quick Primer: India’s Surrogacy and ART Laws

Two key laws now shape assisted reproduction in India.worldfertilityservices+1

The Surrogacy (Regulation) Act, 2021 regulates who can take surrogacy, under what conditions, and through which clinics.ivfsurrogacy+1
The Assisted Reproductive Technology (Regulation) Act, 2021 governs IVF, ICSI, gamete donation, embryo freezing, and clinic obligations.worldfertilityservices+1

In 2025, the Supreme Court considered strict age limits for intended parents under the Surrogacy Act, especially for couples who had already created and frozen embryos before the law changed. The Court questioned whether such couples should be prevented from using their own embryos just because they had crossed the new age limit by the time they sought a surrogate, signalling a more nuanced approach to existing frozen embryos.scobserver+1

These laws focus mainly on medical eligibility, clinic licensing, and preventing commercial abuse. They do not directly spell out what should happen to frozen embryos, stored sperm or posthumously conceived children from a succession and inheritance perspective.dhyeyaias+1

Posthumous Reproduction: Using Genetic Material After Death

Posthumous reproduction means using a person’s sperm, eggs or embryos after that person has died. Indian courts have already seen emotionally charged cases where:surrogacylawyerindia+1

Parents of a deceased young man wanted to preserve his semen or use it to have a grandchild.
A surviving spouse wanted to use frozen embryos created with their late partner.

Legal commentary and early case law point to a few emerging principles.ivfsurrogacy+1

Consent is critical: Clinics and courts look for clear, written consent from the person whose gametes or embryos are stored, especially regarding any use after death.ivfsurrogacy+1
Family wishes alone are not enough: Courts are cautious about allowing parents or relatives to use stored genetic material purely to continue a family line if the deceased person’s wishes are unclear.surrogacylawyerindia
Clinic contracts and consent forms matter: ART clinics increasingly include specific clauses about storage duration, destruction, donation, and permissibility of posthumous use.worldfertilityservices+1

Without clear consent documents and aligned wills, families may face lengthy disputes or clinic refusals at the worst possible time.dhyeyaias+1

If a Child Is Born After Your Death: Who Inherits?

Under Indian succession principles, once a child is legally recognised as the son or daughter of a person, that child stands in the same line of inheritance as any other legitimate child, regardless of whether conception was natural, through IVF, or via a legally compliant surrogacy arrangement. The real complications arise around proof and timing.ibanet+1

The law needs clarity on whether the child was conceived using valid consent and in accordance with ART and Surrogacy Acts.worldfertilityservices+1
For intestate succession (no will), questions can come up about whether a posthumously born child falls within the class of heirs at the time of death, especially if birth happens much later.practiceguides.chambers+1

From a practical standpoint, a well-drafted will can:ibanet+1

Explicitly recognise and provide for any child that may be born from existing frozen embryos or from a lawful surrogacy arrangement after the testator’s death.
Reduce conflict with existing children or relatives who might otherwise challenge the new child’s share.doonlawmentor+1

What Happens to Frozen Embryos and Stored Sperm on Death?

In most cases, the default position on frozen embryos or stored sperm or eggs is governed by the consent form signed at the clinic and the clinic’s standard policies and contract terms.ivfsurrogacy+1

Common options that appear in such documents include:surrogacylawyerindia+1

Use only during the lifetime of both partners and destruction on death of one partner.
Permission for the surviving spouse to use embryos within a defined period.
Donation for research or to other infertile couples in certain cases.

However, these consents are often signed in a hurry, without full estate-planning advice, and they may not match what is written (or not written) in the person’s will. This mismatch can lead to disputes between the surviving spouse, parents, siblings, and the clinic.dhyeyaias+1

How to Reflect ART and Surrogacy in Your Will

If you or your partner have stored sperm, eggs, or embryos, or are engaged in a surrogacy or IVF plan, your will should not ignore this reality.practiceguides.chambers+1

Key elements to consider including, after legal advice:ibanet+1

A clear statement that you have stored genetic material

Mention that you have frozen embryos or gametes, and identify the clinic or bank where they are stored.ivfsurrogacy+1
This alerts your executor and family to a major asset with emotional and legal significance.

Your decision on posthumous use

Clearly authorise or prohibit your spouse or partner from using your stored sperm, eggs, or embryos after your death.surrogacylawyerindia+1
If you permit use, state any conditions, such as within a certain time frame or only for the benefit of a particular spouse or partner.surrogacylawyerindia

Provision for any posthumously born child

Clarify that any child born from such use, in accordance with law, should be treated as your child for inheritance, with the same rights as other children.practiceguides.chambers+1
Where you have other heirs, consider explaining in simple language how shares should be divided so there is less room for argument.doonlawmentor+1

Alignment with clinic consents and surrogacy agreements

Ensure your will does not contradict what you have signed at the clinic or in any surrogacy contract.worldfertilityservices+1
If necessary, update both the medical consent and the will at the same time so they speak the same language.ivfsurrogacy+1

Practical Steps for Couples and Families Using ART

Because this area cuts across medicine, ethics and law, it is important to be deliberate rather than reactive.dhyeyaias+1

Practical steps include:

Discussing “what if” scenarios with your partner before starting IVF or freezing embryos.worldfertilityservices+1
Reading clinic consent forms carefully, especially clauses on death, divorce, or long-term non-payment of storage fees.ivfsurrogacy
Speaking to a lawyer or using a specialised will platform to add clear ART and surrogacy-related clauses to your will.iwills+1
Updating your will if your marital status, health, or family plans change, or if you move embryos to a different clinic.iwills+1

Talking through these topics may feel uncomfortable, but it is kinder than leaving your spouse and parents to fight it out later in court.doonlawmentor+1

Why This Matters for the Future of Indian Inheritance

Experts in reproductive law and private wealth planning increasingly warn that India is at the start of a long wave of disputes involving ART, surrogacy and posthumous conception. As medical technology advances and more embryos are frozen, questions about consent, lineage, and inheritance will only grow sharper.dhyeyaias+3

Families who plan ahead—by aligning clinic consents, surrogacy agreements and well-drafted wills—can avoid becoming test cases in this evolving area of law. For Indians using IVF or surrogacy, estate planning is no longer just about houses, FDs and shares; it is also about how, when, and whether your future children may be born and recognised after you are gone.iwills+3