REPRODUCTIVE RIGHTS IN PRISONS: JUDICIAL RECOGNITION OF IVF AND PROCREATIVE RIGHTS OF INCARCERATED PERSONS

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By Divya. M. B, Senior Research officer

Author Bio:-

Designation: Senior Legal Research Officer, Affiliation: The High-Level Committee on Union-State Relations (Kurian Joseph Committee), The Government of Tamil Nadu

Abstract

The right of procreation is a fundamental dimension of the right to life, dignity, and personal liberty uncontested under Article 21 of the Indian Constitution. This paper probes the evolving judicial recognition of reproductive rights of incarcerated persons, especially via Artificial Insemination (AI) and In Vitro Fertilization (IVF), under the wider framework of correctional reforms and rehabilitative justice in India. Historically viewed through a retributive lens, contemporary penal policy progressively accentuates rehabilitation and reintegration of offenders into society. The judiciary has held substantially that incarceration does not completely abrogate the fundamental rights, particularly the right to procreate and to family life. Landmark decisions like Jasvir Singh vs. State of Punjab laid down the substratum of the principle that the right of procreation prevails over imprisonment, though subject to reasonable restrictions on the gravity of the offence, prison safety, and security. Post-rulings by the various high courts also applied the principle via provisional leave for undergoing ICSI/IVF treatment or case-by-case grants of parole. These decisions contemplate a transition towards a human rights-centric and rehabilitative sentencing paradigm. However, differences persist among high courts, with some underscoring administrative limitations and victims’ rights while refuting relief even in infertility cases. This paper critically examines the legislative, constitutional, and penological aspects of procreative rights of prisoners. It brings to the fore the tension between state interest in correctional governance, individual dignity, and emerging restorative justice paradigms. It argues that there is an urgent need for uniform national standards that integrate the rights to IVF with the BNSS and Model Prison Manual to further humane correctional practices in line with victim-centric interests. It concludes with policy recommendations for administrative and legislative reforms to strengthen judicial oversight of correctional administrators in safeguarding the constitutional rights of incarcerated persons.

Keywords: Article 21, Reproductive rights, Correctional institutions, Rehabilitative justice, IVF in prisons, Judicial oversight.

Introduction

The Right to life enshrined in Article 21 is not of mere survival or existence.

It guarantees a right of persons to life with human dignity.

Therein are included, all the aspects of life which go to make a

 person’s life meaningful, complete and worth living.

The human life has its charm and there is no reason why the life should

not be enjoyed along with all permissible pleasures.[1]

The interface of crime, punishment, and correction is at the core of modern criminal jurisprudence. While the traditional penology has been concerned with retribution and deterrence, the contemporary discourse has started providing significant emphasis to the rehabilitation and social reintegration of the offenders as integral components of a humane correctional system. In this regard, the recognition of some basic rights of the incarcerated persons has gained prominence. Among such emerging but very pressing issue is the reproductive rights of prisoners, in particular, the right to procreate through IVF and AI.
Article 21 of the Indian Constitution guarantees the right to life and personal liberty, which has been interpreted expansively by the Apex Court and High Courts to include the right to live with human dignity. This wider interpretation has consistently held that incarceration does not lead to the absolute effacement of all fundamental rights.[2] Imprisonment does not extinguish rights to dignity, privacy, health and family life but is subject to such reasonable restrictions as are imposed by law and the legitimate interests of the State in maintaining prison discipline and security. Article 21 has come to be increasingly understood as integral to personal dignity and liberty which includes the right to procreate and parenthood. In an innovative judgment in Jasvir Singh v. State of Punjab (2015)[3], the High Court of Punjab and Haryana held that the right to procreation does not cease upon incarceration and can be exercised through artificial insemination where conjugal visits are not possible. Further, subsequent decisions of the Madras, Kerala and Delhi High Courts have extended the jurisprudence by permitting parole or temporary release on a case-to-case basis to facilitate prisoners undergoing IVF/ICSI treatment. These decisions illustrate a progressive move towards a rehabilitative paradigm of sentencing where punishment is not solely deprivation of liberty but an opportunity for eventual reintegration into society including restoration of family life. However, this judicial recognition is not without challenges. Judicial pronouncements have pitted the convict’s reproductive autonomy against compelling penological interests like nature of crime, prison security, administrative practicality and victims’ rights. recently, Recently, in Kundan Singh v. The State Govt. of NCT Delhi[4], the Delhi High Court was approached to address a relevant issue in so far as it had to decide whether a convict has the right to procreate and parenthood while undergoing their penal sentence. The 2026 Delhi High Court judgment[5] permitting sperm extraction from an army soldier in persistent vegetative state and the 2023 Kerala High Court order[6] permitting parole for IVF treatment but denying emergency leave for pregnancy-related care in 2025 highlights the difficulty in balancing the act between individual rights and justice for victims and is a mirror to changing contours of reproductive autonomy, offering comparative insights into how similar questions may be approached in cases involving the prisoner cases. Previously, the High Court confirmed that the right to reproductive autonomy does not cease incarceration.[7] However, in spite of these progressive measures, the yawning legislative vacuum continues[8]. None of the Model Prison Manual, 2016 nor the Prisons Act, 1894 nor the Assisted Reproductive Technology (Regulation) Act, 2021 recognize the reproductive rights of persons in prison. The court driven approach has been ad-hoc, not uniform across states and often dependent on the discretion of prison authorities and judicial intervention under article 226.

The paper critically examines the judicial recognition of IVF and procreative rights of inmates in India, analyses how these developments contribute to the contemporary evolution of rehabilitative sentencing paradigms and strengthen judicial oversight of correctional institutions. It focuses on the constitutional, penological and practical challenges involved and explores the delicate balance between the rights of the convict, the interests of the victim and the broader goals of correction and social reintegration.
The fundamental point made is that while judicial activism has played an important role in advancing prisoners’ rights, any sustainable progress will need to be supplemented by legislative and administrative reforms, including the development of uniform national guidelines for granting parole on reproductive grounds, which would help bring individual dignity in line with the objectives of crime prevention and restorative correction in the post-BNS/BNSS period.

Constitutional perspectives of prisoners’ reproductive rights:

The right to reproduction of incarcerated persons is rooted in the comprehensive reading of Article 21 that embodies the right to life and personal liberty. The Supreme Court, over the years, has transformed Article 21 from a mere guarantee against arbitrary deprivation of life into a rich repository of multiple facets of human dignity. In Maneka Gandhi v. Union of India (1978)[9], the Court observed that the right to life are not limited to mere animal existence but also encompasses the right to live with dignity. This line of jurisprudence was further developed in Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981)[10], where the Court pointed out the right to life includes to “all those limbs and faculties by which life is enjoyed.”
Another important milestone in prisoners’ rights jurisprudence is the judgment in Sunil Batra v. Delhi Administration (1978)[11], where Justice V.R. Krishna Iyer emphatically asserted, “convicts are not wholly denuded of their fundamental rights” upon incarceration. The Court held that a prisoner retains all constitutional rights except those that are inconsistent with incarceration. This reformative approach allowed realizing that some basic human rights such as dignity, health, privacy and family life still survive even in imprisonment.

The right to procreate and exercising reproductive autonomy is increasingly being viewed as an integral part of the right to dignity and personal liberty guaranteed under Article 21. Procreation and parenthood are basic human desires that add meaning and worth to life. The refusal of a prisoner’s right to have a biological child, especially in the case of infertility, could constitute an unwarranted invasion of personal dignity, particularly where modern medical technology such as IVF and AI enables a viable alternative to conjugal visits. The rehabilitative or reformative theory of punishment provides compelling theoretical support for the recognition of such rights. While the retributive model aims to inflict proportionate suffering, the rehabilitative model considers punishment as an opportunity for moral reformation and ultimately, reintegration of the offender into society. This philosophy is reflected in Justice Krishna Iyer’s view of the prison as a “hospital for the mentally ill”, a “corrective institution”, and not just a place of incarceration. This philosophy influences the practice of enforcing procreative rights through IVF that, in turn, makes family reunification (a critical element of successful rehabilitation and correction) possible. A prisoner with family ties, especially the possibility of parenthood, is more likely to develop a sense of responsibility and purpose and, therefore, a lower risk of recidivism.

The position is also endorsed by international human rights standards. Article 17 of the ICCPR[12] and Article 16 of the UDHR[13] protect the right to family life. The United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) provide that imprisonment shall not aggravate the suffering inherent in incarceration and shall be conducive to the promotion of rehabilitation. Several jurisdictions, such as in parts of Europe and the United States, have recognised limited conjugal or procreative rights for prisoners, subject to reasonable restrictions. The ART Act, 2021 governs IVF and the like in India[14] but is silent on its applicability to incarcerated persons. Similarly, the Prisons Act, 1894 and the Model Prison Manual 2016 does not contain any exclusive provision on AI facilities or reproductive rights. This legislative gap has necessitated the judiciary to rescue through writ jurisdiction to cultivate a jurisprudence on a case-to-case basis equating the individuals’ dignity with cogent penological interests including victims’ rights. Therefore, the recognition of IVF and procreative rights of prisoners is a modern development in rehabilitative sentencing paradigms. The recognition is an attempt by the judiciary to humanize correctional institutions, recognizing that the objectives of correction are not restricted to punishment but also restoring the social and familial bonds of the offender. However, this right is not unfettered and must be exercised within the parameters of “procedure established by law” and reasonable classification based on the nature of the offence, conduct of the prisoner, and societal interests.

Legislative and policy framework of prisoners’ right of reproduction

Despite the progressive judicial recognition of reproductive and procreative rights of incarcerated persons, Indian law suffers from a significant legislative vacuum. Neither the central nor most state prison laws explicitly address the issue of conjugal visits, artificial insemination, or IVF facilities for prisoners. This gap has resulted in the judiciary evolving rights on a case-to-case basis through Article 226[15] resulting in an ad-hoc and inconsistent approach.

The key Indian law on prisons is the colonial Prisons Act, 1894, and it is mostly silent on issues of contemporary concern, including reproductive rights. Section 27 of the Act provides that male and female prisoners should be kept separately, which indirectly creates practical obstacles to conjugal relationships.[16] The Act deals mainly with custody, discipline and basic welfare and does not envisage advanced reproductive technologies, such as IVF or artificial insemination.

The Model Prison Manual, 2016 issued by the Ministry of Home Affairs is an improvement on the earlier manuals and lays emphasis on reformation, rehabilitation and reintegration of prisoners[17]. It encourages to contact with family members through visits, letters, and parole[18]. However, it stops short of recognizing any right to conjugal visits or providing guidelines for assisted reproductive techniques. The Manual encourages “family contact programmes”[19] and temporary release on various grounds (including humanitarian considerations)[20] but leaves the interpretation of “extraordinary reasons” to the discretion of prison authorities and state governments.

At the state level, prison manuals and rules for temporary release/parole (such as the Tamil Nadu Suspension of Sentence Rules, 1982, or similar rules in Kerala and Punjab) allow leave on “special” or “extraordinary” grounds. Courts have interpreted infertility treatment and the desire to have a biological child as falling within such extraordinary grounds, as seen in Meharaj v. State of Tamil Nadu[21]. However, these rules are still discretionary and do not provide uniform criteria for granting parole for IVF or artificial insemination.
The Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act) governs clinics, gamete donation and IVF procedures all-over India. Section 22 of the Act lays down detailed requirements for consent and prescribes age limits for intending parents[22]. However, the Act does not deal with incarcerated persons and use of ART facilities in correctional institutions. The retrieval of sperm from a comatose soldier was allowed in a case on the basis of prior consent to IVF, highlights the importance of consent and reproductive autonomy under the Act, however is not relevant to the prisoners.[23]

The CrPC on parole[24], temporary release[25] and victim-centric justice[26] has been replaced by progressive provisions of Bharatiya Nagarik Suraksha Sanhita 2023 on parole[27], temporary release[28] and victim-centric justice[29]. The provisions relating to suspension of sentence and parole offer more flexibility on humanitarian grounds. However, even the BNSS does not explicitly recognize reproductive rights or create any statutory entitlement for prisoners to access IVF facilities or related parole.

This legislative silence has two major consequences. First, it places the entire burden on the judiciary to balance the convict’s constitutional rights under Article 21[30] with legitimate penological interests such as prison security, discipline, administrative feasibility, and the rights and sentiments of victims. Secondly, it leads to huge inter-state and even intra-state variation in grant of relief depending upon the progressive outlook of individual high courts and prison administrators.

The lack of a clear statutory framework leads prison authorities to adopt a conservative approach on the basis of logistical difficulties, security concerns and infrastructural constraints. The result is a rights regime that is judicially driven rather than policy-backed, thus undermining the uniformity and certainty associated with a modern correctional system.
The interface with the broader theme of crime, compensation, and correction becomes evident here. While the criminal justice system has moved towards restorative and rehabilitative models post-BNS/BNSS, the failure to integrate reproductive rights into correctional policy reflects an incomplete transition from retributive to reformative justice[31]. A comprehensive legislative or executive policy, preferably in the form of uniform national guidelines or amendments to the Model Prison Manual is immediately required to translate judicial pronouncements into enforceable rights while incorporating necessary safeguards.
Judicial stand on reproductive rights of incarcerated persons
The judicial evolution on recognizing reproductive rights of incarcerated persons through IVF and artificial insemination represents a significant milestone in the evolution of prisoners’ rights jurisprudence in India. Such development is an example of the proactive role of the judiciary in expanding the contours of Article 21 and promoting rehabilitative objectives in correctional institutions.

Preliminary Ruling: The bench of the Punjab and Haryana High Court laid the foundation for the landmark case of Jasvir Singh v. State of Punjab (2015)[32]. In this case, a couple, both convicts (husband on death row and wife undergoing life imprisonment) sought enforcement of their right to conjugal visits or, alternatively, artificial insemination for the purpose of procreation.

The Court observed that “the right to procreation as an integral facet of the right to life and personal liberty under Article 21” and survives incarceration. It observed that incarceration does not result in the complete effacement of fundamental rights. Relying on Sunil Batra and international human rights norms, the Court affirmed that the right to procreate (including through artificial means) is traceable to Article 21 read with the Universal Declaration of Human Rights. The Court however clarified that this right is not absolute and is subject to reasonable restrictions imposed on the grounds of prison security, discipline, nature of the offence and penological interests of the State.

Although the Court ultimately declined relief to the petitioners due to the gravity of their offences and infrastructural constraints, it issued a forward-looking direction to the State to constitute a Jail Reforms Committee to examine the feasibility of conjugal visits or artificial insemination in a phased manner. This judgment remains the most cited authority on prisoners’ procreative rights.

Twisted approach by the Madras High Court

The Madras High Court adopted a more nuanced position in Meharaj v. State of Tamil Nadu (2022)[33]. The wife of a life convict sought temporary leave for her husband to enable infertility treatment and conjugal relationship. The Court held that while there is no absolute fundamental right to conjugal visits as a matter of routine, denial of conjugal relationship for a “specific purpose” such as infertility treatment may constitute a denial of the right guaranteed under Article 21.

The Court drew a difference between general conjugal rights and procreation-related needs, holding that the infertility treatment could qualify as an “extraordinary reason” under the Tamil Nadu Suspension of Sentence Rules, 1982. It emphasized that such rights must be balanced against legitimate state interests but directed a humanitarian approach in deserving cases.
Progressive but cautious nuance of the Kerala High Court
The Kerala High Court has delivered some of the most practical rulings in recent years. In October 2023, the Court granted 15 days’ parole to a life convict (convicted of murder) to enable him and his wife to undergo IVF/ICSI treatment. The Court observed that the convict has “every right to a decent life” and that procreative rights form part of dignified existence under Article 21. This order was widely welcomed as a progressive step towards rehabilitative justice.

However, in a different judgment in 2025[34], the Kerala High Court refused to grant an emergency parole to another life convict whose wife was pregnant following the earlier IVF treatment. The Court stressed that the rights of the convicts must be balanced against with the rights and the concerns of the victims and held that care for pregnancy is not an “extraordinary ground” justifying intervention under Article 226, particularly in cases of serious crimes. These two rulings points out the difficult and competing considerations that arise when reproductive interests converge with the rights of prisoners and victims.

Delhi High Court’s decision and comparative analysis:

The Delhi High Court has also acknowledged that the right to procreate and parenthood is a part of Article 21. In Kundan Singh case[35] (2023) the Court observed that the convict’s interest in having a biological child through parole, especially when the couple had no children, subject to such conditions that are reasonable.

A major development in April 2026, the Delhi High Court permitted the retrieval and cryopreservation of sperm of an Indian Army soldier who was in a vegetative state to enable the wife’s IVF treatment. The Court held that the earlier consent of the couple for the IVF treatment was a valid consent under the Assisted Reproductive Technology (Regulation) Act, 2021 and recognised the reproductive autonomy as a fundamental aspect of Article 21. Even though the abovementioned case is not related to a prisoner, the said ruling strengthens the broader jurisprudence on reproductive rights in situations of compromised autonomy and offers comparative outlook when examining the reproductive autonomy in the context of incarceration.  

Emerging Trends and Critical Observations:

The cases reveal a distinct pattern that the Courts are reluctant to permit IVF within prisons and tend to grant temporary parole or leave because of security, logistical, and infrastructural problems.
– The right is more easily given to male convicts who have wives outside prison while rights of female prisoners and undertrials are underdeveloped and often subjected to more scrutiny (for example, denial by Mumbai Sessions Court to an undertrial woman in 2023 citing burden of trial).

– Uniform classification on the basis of nature and gravity of the offence. The Serious offences which includes murder, sexual offences are subject to greater restrictions.

– The jurisprudence is still unsettled and predominantly court-driven, leading to contradictions between High Courts.
These rulings are a welcome shift towards rehabilitative justice however the lack of uniform national guidelines leads to arbitrariness. The approach remains largely discretionary, often hinging on the sensitivity of individual judges. Moreover, the thin link to victim compensation and restorative justice, a central theme of this volume needs greater attention. Prolonged denial of procreative rights can indirectly affect the convict’s family (secondary victims of incarceration), raising questions about compensatory or reparative measures.

The judiciary has played a commendable role in filling the legislative vacuum, but sustainable reform requires legislative backing and administrative policy.

Challenges and the Interface of Crime, Compensation and Correction

The progressive judicial recognition of reproductive rights through IVF and artificial insemination traverses a complex terrain of practical, penological and ethical challenges. These issues reveal the basic conflicts between the protection of constitutional rights of the incarcerated and pursuing the boarder objectives of the criminal justice system, particularly in relation to crime, compensation and correction.

A major challenge lies in the tension between the dignity of the individual and the interests of the state in correction. The courts have repeatedly stated that the right to procreate is not an absolute one. Security concerns, the risk of escape, administrative burden and the nature of the offence continue to be dominant considerations. Life convicts and those convicted of heinous offences (especially sexual offences and terrorism-related cases) are generally subjected to a much higher level of scrutiny. Though reasonable by the gravity of the offences, the absence of definite and well-defined guidelines can make the classification appear arbitrary. The result is unequal treatment of similarly situated prisoners across different High Courts and states.

Another critical issue is the tension with victim-centric justice. The paper’s central theme emphasizes victim compensation and restorative justice. In offences of serious nature, granting parole for IVF treatment can be perceived as undermining the suffering of victims and their families. Prolonged incarceration already inflicts secondary victimization on the convict’s family; denying procreative rights may further exacerbate this harm. This raises an important but underexplored question: whether the family of a long-term prisoner can be considered “secondary victims” deserving some form of compensatory or reparative consideration under Article 21.

From the correction and rehabilitation perspective, recognizing IVF rights can serve as a powerful tool for social reintegration. Empirical studies on prison reform suggest that maintaining family ties significantly reduces recidivism. Parenthood This often provides a good incentive for reform and sense of responsibility. But the ad-hoc nature of the current parole system has no structured post-release support or monitoring to ensure the objective of rehabilitation is actually achieved. Moreover, socio-economic vulnerabilities play a major role, only prisoners whose spouses can afford expensive IVF treatment can realistically benefit from these judicial orders, thereby creating a class-based disparity in the enjoyment of this right.

Gender dimensions further complicate the discourse. Most reported cases involve male convicts seeking parole so that their wives outside the prison can undergo IVF. The reproductive rights of female prisoners, especially those who are serving long term sentences, are largely overlooked by the Courts. Issues such as age-related fertility decline, pregnancy risks in custody and childcare responsibilities after release all require increased attention within a human rights-based correctional framework.

The absence of a uniform national policy leads to inconsistent application of law. What one High Court considers an “extraordinary ground” warranting parole may be rejected by another. This violates the constitutional guarantee of equality under Article 14[36]. There is yet another layer of anomaly: undertrials, who are presumed innocent, often face worse denial of such rights than convicts.

Finally, infrastructural and logistical barriers are formidable. Most Indian prisons do not have the medical facilities, privacy or trained staff that would be necessary to conduct artificial insemination. Consequently, courts are compelled to rely on temporary parole rather than developing in-prison solutions, which raises questions about equal access and non-discrimination.


In essence, while judicial intervention has expanded the frontiers of rehabilitative justice, the current framework falls short of a holistic “correction” model. True rehabilitative sentencing requires moving beyond episodic judicial relief towards institutionalized policy that harmonizes the convict’s constitutional rights, victim interests, and the broader goals of social reintegration and public safety.


Recommendations and Way Forward

The judicial recognition of reproductive and procreative rights of incarcerated persons through IVF and artificial insemination is a progressive move towards humanising the correctional system. However, dependence on irregular judicial intervention is neither sustainable nor desirable in the long run. It is urgently needed to develop a comprehensive rights-based policy framework to convert constitutional guarantees into consistent and enforceable entitlements. The following recommendations are proposed:

  1.            Development of Uniform National Guidelines

 The Home Affairs Ministry, in consultation with the National Human Rights Commission and legal experts, shall develop an extensive National Guidelines on Reproductive Rights of the Prisoners. These rules must clearly define the criteria, procedure and safeguards for granting parole or temporary release for IVF, artificial insemination or related fertility treatment. A structured classification matrix based on the nature and seriousness of offences, conduct of the prisoner, family situations and medical necessity should be adopted.

  •            Amendment to the Model Prison Manual and BNSS

 The Model Prison Manual, 2016 should be amended to explicitly recognize procreative rights as one of the legitimate grounds for temporary release on humanitarian considerations. Similarly, suitable provisions may be incorporated in the Bharatiya Nagarik Suraksha Sanhita (BNSS) to treat infertility treatment and desire for biological parenthood as valid grounds for suspension of sentence or parole, subject to reasonable restrictions.

  •            Institutional Mechanism for Decision Making

A three-member Prison Reproductive Rights Committee should be constituted in every central and state prison comprising the Superintendent of Prison, a medical officer, and a judicial or legal member (preferably a retired judge or legal aid officer). This committee should examine applications for IVF-related parole on merit and forward its recommendations to the competent authority within a stipulated time frame (i.e., 30 days).

  •          Balancing Victim Rights and Restorative Justice

In cases involving serious offences, the views of the victim or victim’s family may be considered as one of the relevant factors before granting parole for IVF. At the same time, the family of long-term prisoners should be recognized as secondary victims of prolonged incarceration. Appropriate compensatory or rehabilitative measures, including counselling and financial support where necessary, may be extended to such families under existing victim compensation schemes or through new provisions under the BNSS.

  •          Gender-Sensitive and Inclusive Approach

Special attention shall be drawn towards the reproductive rights and healthcare requirements of women prisoners. Policy decisions with respect to the fertility issues related to age, risks of pregnancy and responsibilities for child care after release shall be taken into consideration. The guidelines should prevent women prisoners from being unduly disadvantaged in accessing reproductive technologies.

  •           Pilot Projects and Infrastructure Development

Selected central prisons should be designated as pilot facilities for implementing aided reproductive techniques with adequate medical infrastructure, privacy, and professionally trained staff.

  •           Judicial Oversight and Monitoring Mechanism

High Courts should continue to exercise supervisory jurisdiction under Article 226 to promote consistent and uniform implementation of these guidelines. Annual reports on the disposal of applications relating to reproductive rights of prisoners should be submitted to the respective High Courts and the Supreme Court.

      8.           Training upgradation framework 

Awareness and Legal Aid Prison legal aid clinics and para-legal volunteers should be trained to help prisoners apply for IVF-related parole. The induction and reformation programmes for inmates should necessarily include awareness programmes on reproductive rights. Implementation of such recommendations would be a meaningful step in bridging the gap between judicial pronouncements and ground level reality.

Conclusion

Recognition of reproductive rights through IVF and artificial insemination is a landmark move in the continuing jurisprudence of prisoners’ rights in India. What had started as a daring pronouncement in Jasvir Singh v. State of Punjab[37], has gradually developed into a nuanced jurisprudence recognizing the continued existence of procreative rights under Article 21 even within the confines of prison. These judicial interventions have underscored that while deprivation of liberty is a legitimate consequence of incarceration, it does not completely erase the right to live with human dignity and the fundamental aspiration of parenthood.[38] This reflects the modern shift from a purely retributive approach to punishment towards a more humane and rehabilitative model of sentencing. By enabling procreation to facilitate family reintegration, the judiciary has restored the corrective purpose of prisons from being mere places of confinement to becoming spaces that prepare persons for eventual return to society as responsible citizens. The willingness of High Courts to grant parole for IVF treatment is indicative of an expanded understanding of judicial oversight over correctional institutions to ensure that the constitutional guarantees are not rendered illusory for persons in prison. However, the journey is far from over. The existing framework is plagued by legislative silence, inter-state discrepancies, ad-hoc decision making and poor balancing of convict rights with victim-centric concerns. The lacuna of the standardized national guidelines remains to create vagueness and potential arbitrariness in the implementation of this emerging right.[39] Further, consistent socio-economic and gender disparities limits the practical effectiveness of these judicial decisions, highlighting concerns about equal access to justice within the correctional system. The nexus of crime, compensation and correction requires a more holistic approach. Despite significant progress in expanding constitutional protections for incarcerated persons, the realisation of rehabilitative justice requires legislative and administrative support.[40] There is a need for the State to go beyond reactive judicial orders, and proactively incorporate reproductive rights within prison manuals, parole policies, and the larger universe of reforms to the criminal justice system initiated in the BNS and BNSS. Ultimately, recognizing the procreative rights of prisoners is not simply a matter of individual dignity but a reaffirmation of faith in the potential for reform in each human being.[41] A rights-conscious, victim-sensitive, and balanced approach to IVF and artificial insemination in prisons will deepen the moral foundations of India’s correctional system and add meaningful value to the larger goals of restorative and rehabilitative justice. Theoretical and Constitutional Foundations the right to reproductive rights of incarcerated persons is derived from a wider interpretation of Article 21 of the Constitution of India which guarantees the right to life and personal liberty. The Supreme Court has developed Article 21 over time from a simple safeguard against arbitrary deprivations of life to an abundant source of various dimensions of human dignity. In Maneka Gandhi v. Union of India (1978)[42], the Court held that the right to life is not just the animal existence but the right to live with dignity. This jurisprudence was further fortified in Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981)[43], where the Court observed that the right to life includes “all those limbs and faculties by which life is enjoyed.” A significant milestone in prisoners’ rights jurisprudence is the landmark decision in Sunil Batra v. Delhi Administration (1978)[44], where Justice V.R. Krishna Iyer emphatically asserted that “convicts are not wholly denuded of their fundamental rights” upon incarceration. The Court held that the imprisonment does not take away the prisoner’s constitutional rights except those that are inconsistent with incarceration. This reformative approach laid the groundwork for establishing certain basic human rights including dignity, health, privacy, and family life survive imprisonment. The right to procreate and exercise reproductive autonomy is increasingly viewed as an essential component of the right to dignity and personal liberty under Article 21. The denial of an opportunity to a prisoner to have a biological child, especially in the case of infertility, can be an unjustified interference with personal dignity especially when modern medical technology such as IVF and Artificial Insemination can provide viable alternatives to conjugal visits. The reformative or rehabilitative theory of punishment provides a strong theoretical basis for the recognition of such rights. Unlike the retributive model that is primarily concerned with the infliction of proportionate suffering, the rehabilitative model regards the punishment as an opportunity for the moral reformation of the offender and eventual reintegration into society. Justice Krishna Iyer’s philosophy finds expression in his conception of prison as a “hospital for the mentally ill” and a “corrective institution” and not a place of mere confinement. The recognition of procreative rights through IVF is in line with this vision in that it enables family reintegration – an essential element of positive rehabilitation and correction. The United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules, 2015) emphasise the importance of maintaining and improving family relations as part of rehabilitation. Rule 106 states that special attention shall be paid to desirable relations between a prisoner and his or her family. Rule 58 allows for regular contact with family and friends, and where conjugal visits are permitted, and it should be available without any discrimination. The Bangkok Rules (for women prisoners) emphasize the importance of contact with family for mental health and social reintegration. In Europe, the European Court of Human Rights (ECtHR) has been an important influence. In the landmark case of Dickson v. The United Kingdom (2007)[45], the Grand Chamber held denying artificial insemination facilities to a prisoner serving a life sentence violated Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The Court underlined that the imprisonment does not itself, extinguish a person’s right found a family, although states enjoy a wide “margin of appreciation” when balancing the individual rights with prison security and wider public interests. Many Council of Europe member states (including Spain, France, and several Scandinavian countries) permit conjugal visits or facilitate access to assisted reproduction, reflecting a more liberal approach to family life in prisons. In contrast, the position in the United States is more restrictive. In Gerber v. Hickman (2002)[46], an en banc panel of the Ninth Circuit Court of Appeals held that the right to procreate is fundamentally irreconcilable with incarceration, denying a prisoner’s request for artificial insemination. Earlier cases such as Goodwin v. Turner[47] similarly demonstrated a general reluctance to recognize procreative rights while incarcerated, often citing security concerns, administrative difficulties and collateral effects of punishment. Nevertheless, some states allow limited conjugal visits, and the issue remains controversial. These global developments illustrate a spectrum of views; from the ECtHR’s rights-based balancing test to the more security-focused approach seen in some parts of the US. India’s judiciary, though influenced by these precedents (as seen in Jasvir Singh), has taken a middle path recognizing the continuation of procreative rights under Article 21 but imposing reasonable restrictions based on the nature of the crime and prison regulations. Therefore, the recognition of IVF and procreative rights of prisoners is a modern development in rehabilitative sentencing paradigms. It reflects the judiciary’s effort to humanize correctional institutions while recognizing that the goals of correction go beyond punishment to restore the offender’s social and familial ties. However, this right is not absolute and must be exercised within the limits of “procedure established by law” and reasonable classification.

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  8. Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the Commission at its fifty-third session in 2001 (Final Outcome) (International Law Commission [ILC]), contained in U.N. Doc. A/56/49(Vol. I)/Corr.4 (2001), Arts. 3-4
  9. Sunil Batra v. Delhi Administration, (1980) 3 SCC 488 (known as Sunil Batra-II)
  10. Hallo Bi v. State of Madhya Pradesh (2009) 9 SCC 1
  11. Suchita Srivastava v. Chandigarh Administration 2017 Cri LJ 218 (Bom)
  12. High Court on Its Own Motion v. State of Maharashtra (2007) 15 SCC 337
  13. R. D. Upadhyay v. State of Andhra Pradesh Criminal Appeal No. 652/2008, decided on Feb. 01, 2016 (High Court of Gujarat).
  14. State of Gujarat v. Jadav, Jatin Bhagvanbhai Prajapati & Ors 2015 Cri LJ 2282 (P&H)
  15. Jasvir Singh v. State of Punjab 2018 SCC OnLine Mad 278
  16. Mrs. Meharaj vs. The State & Ors 2022 SCC OnLine Mad 381
  17. Dickson v. The United Kingdom, Application No. 44362/04 (2007)
  18. Karina Montenegro et al. v. Ecuador, Report No. 61/13, Petition 12.631, Friendly Settlement (2013)
  19. Miriam Beatriz Riquelme Ramírez v. Paraguay, Report No. 25/13, Petition 1097-06, Friendly Settlement (2013)
  20. State of Andhra Pradesh v. Chalaram Krishna Reddy (2000) 5 SCC 712
  21. Mithu v. State of Punjab, (1983) 2 SCC 277
  22. Kundan Singh v. State of NCT of Delhi 2015 DHC 10902800
  23. Ms. G. Bhargava, President M/s Gareeb Guide (Voluntary Organisation) v. State of Andhra Pradesh PIL No. 251 of 2012
  24. William Gerber v. Rodney Hickmen, 291 F.3d 617 (2002)
  25. Steven J. Goodwin v. CA Turner, [908 F.2d 1395] (1990)
  26. R v. Secretary of State for Home Department, [2001] EWCA Civ 472
  27. Francis Coralie Mullin v. Administrator, Union Territory of Delhi 1981 SCR (2) 516
  28. Maneka Gandhi v. Union of India [1978] 2 S.C.R. 621
  29. Goodwin v. Turner 908 F.2d 1395 (8th Cir. 1990).
  30. Mohd. Giasuddin v. State of Andhra Pradesh, (1977) AIR 1926, 1978 SCR (1) 153, 1977  SCC (3) 287 (India). 
  31. Hussainara Khatoon & Ors. v. Home Sec’y, State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532 (India).
  32. Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684 (India).
  33. Standing Committee on Home Affairs, Prison-Conditions, Infrastructure and Reforms (2023), available at PRS India.
  34.  Jeremy Bentham, An Introduction to the Principles of Morals and Legislation – 1789.
  35. Cesare Beccaria, On crimes and punishments – 1764. 

[1] In Re: Noise Pollution of Restricting use of loudspeakers SLP (C) No. 21851/2003

[2] Dr. Jennifer M. Miller, The Two Faces Of Justice: Retribution And Rehabilitation In Contemporary Society, IOSR Journal of Humanities and Social Science (IOSR-JHSS) Volume 30, Issue 3, Series 3 (March, 2025) 70-81 e-ISSN: 2279-0837, p-ISSN: 2279-0845. www.iosrjournals.org

[3] 2015 (1) R.C.R. (Criminal) 509.

[4]  2023 SCC OnLine Del 8364, 13.

[5] 2026: DHC:3086, W.P.(C) 4469/2026.

[6] Navya Benny v. State of Kerala W. A. Nos. 3660 & 3661 of 2001 & O.P No. 18683 of 2001.

[7] Rajeeta Patel v. State of Bihar (2020) CR. WJC No. 1868 of 2019

[8] Nikunj Agarwal and Krishna Preetham Kanthi, Incarceration and Reproductive Justice: Delhi High Court takes a stride forward

[9] 1978 AIR 597, 1978 SCR (2) 621. 

[10] AIR 1981 SC 746; (1981) 1 SCC 608

[11] (1980) 3 SCC 488 (known as Sunil Batra-II)

[12] Article 17 of the ICCPR: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

[13] Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

[14] Preamble, The Assisted Reproductive Technology (Regulation) Act, 2021

[15] Writ Jurisdiction of the High Court.

[16] Sourcing of gametes by assisted reproductive technology banks.

[17] Introduction, The Model Prison Manual, 2016, pg 6.

[18] Chapter VIII, Contact with Outside World, The Model Prison Manual, 2016, pg. 96.

[19] Chapter XXIII, Open Institutions, pg. 221.

[20] Chapter XIX, Parole and Farlough, pg. 192.

[21] H.C.P.(MD)No.1121 of 2017

[22] Section 22, Written informed consent

[23] X v. Union of India (2026)

[24] Section 360, Criminal Procedure Code, 1973

[25] Ibid

[26] Section 357, Criminal Procedure Code, 1973

[27] Section 401, Bharatiya Nagarik Suraksha Sanhita, 2023

[28] Ibid

[29] Section 396, Bharatiya Nagarik Suraksha Sanhita, 2023

[30] Protection of life and personal liberty

[31] de Oliveira Morsch, Brenda, “Retribution vs. Restoration: Tendencies of the Criminal Justice System” (2019). Master of Arts in Humanities | Master’s Theses. 2. https://doi.org/10.33015/dominican.edu/2019.HUM.04

[32] Ibid.

[33] 2022 SCC OnLine Mad 208

[34] Bindhu K P vs. State of Kerala

[35] 2015 DHC 10902800

[36] Equality before law.

[37] 2018 SCC OnLine Mad 278

[38] Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, European Journal of International Law, Volume 19, Issue 4, September 2008, Pages 655–724, https://doi.org/10.1093/ejil/chn043

[39] Retrieved from https://www.scconline.com/blog/post/2024/01/09/delhi-high-court-right-to-life-of-convict-includes-right-to-procreate-protect-lineage-parole-grant-legal-news/

[40] Inayat Rehmani, Balancing Punishment and Reformation in the Criminal Justice System: An Indian Perspective. Retrieved from https://recordoflaw.in/balancing-punishment-and-reformation-in-the-criminal-justice-system-an-indian-perspective/

[41] Divya Govindan, Retribution, Rehabilitation and Restoration – Working Towards the Goals of Criminal Justice. Retrieved from https://ijirl.com/wp-content/uploads/2022/05/RETRIBUTION-REHABILITATION-AND-RESTORATION-WORKING-TOWARDS-THE-GOALS-OF-CRIMINAL-JUSTICE.pdf

[42] [1978] 2 S.C.R. 621

[43] 1981 SCR (2) 516

[44] (1980) 3 SCC 488 (known as Sunil Batra-II)

[45] (Application No. 44362/04)

[46] 291 F.3d 617 (9th Cir. 2002) (en banc)

[47] 908 F.2d 1395 (8th Cir. 1990).