Biological Verity vs Statutory Dogmatism: Why Section 116 of the BSA is Outdated in the Age of Cryopreservation and Digital Intent?

The transition from the Indian Evidence Act, 1872, to the Bharatiya Sakshya Adhiniyam was supposed to modernise the Evidence Law in the country. Having said that, by retaining the generations-old 280-day timeframe in Section 116 of the BSA, the law still works on the basis of assumptions made in 1872. Today, the Assisted Reproductive Technology (Regulation) Act 2021, legally recognises cryopreservation and posthumous reproduction, yet BSA continues to presume that a child born after nine months rigid period cannot legally belong to the deceased father. This creates contradictions and confusion in the minds of those who go through the aforementioned situation. The law was rightful in its era when there were no such medical advancements like cryopreservation and posthumous reproduction. However, continued practice of the law in the 21st century, fully equipped with Assisted Reproductive Technologies, shows that the law has failed to keep pace with time. The Indian Courts and several international jurisdictions like Australia, the USA, etc. have already moved beyond the fixed timelines by prioritising intent, consent and biological reality rather than some outdated presumptions. The Indian law also needs to revisit and revise the 280-day timeframe and recognise digital reproductive intent as an accepted norm. Section 63 of BSA, which recognises digital intent, can play an important role in acknowledging such records. Until legislative reforms take place, the judiciary must play the lead role to adopt a modern interpretation that respects the dignity, human rights, and identity of the children born through ART measures. Ultimately, the law should not choose to allow an outdated assumption to take over scientific truth. It should be updated to acknowledge the reality.