This Article is authored by Advocate Anil Malhotra.
Whilst India is still baffled over a ten year yawning period in coming to reality with being the first country to legalise commercial surrogacy, Britain created history with the House of Commons voting in favour of changing the existing English law to legalise the conception of babies by three parents using in vitro fertilisation (IVF) technology. As of now under the existing British law, this process is banned since genetically modified embryos cannot be implanted in the womb of a woman. On the House of Lords approving it and upon grant of royal assent, UK will legally permit creation of designer babies with DNA from two women and one man. The three parent IVF baby born from a genetically modified embryo will have genes from a father, a mother and another female donor. Though hailed in frenzy and euphoria as “historic”, the law in the making is fraught with unknown dimensions, unexplored options and prone to commercial possibilities of abusive experimentation, all catapulting to a whirlpool of legal complexities which may perplex mankind to no end. Embryo selection, choice of traits in babies, cosmetic conception, cloning, and stem cell research for unethical purposes, if not checked, can play havoc with nature. Axiomatically, the use of this positive scientific research potential must be forthwith regulated by an equally forceful corresponding legislation which will restrict procreation of 3 parent babies exclusively and only in established cases which are duly certified by a competent authority as essential to prevent hereditary genetic diseases from being genetically passed on to children.
Three person baby process
The medical treatment of making three parent babies reportedly involves an IVF technique in which an intervention is made in the fertilisation process whereby a small amount of faulty DNA in a woman’s egg is replaced with the healthy DNA of another woman donor. Whilst the father remains the same, the baby inherits a mix of genes from two women, a mother and a contributory female. The ideology in conception of three parent IVF babies supposedly being born disease free, stems from blocking inheritance of genetically incurable diseases being passed down generations. The technique known as “mitochondrial donation” is said to be designed to curtail diseases passed down the maternal line to remove mitochondria which are stated to act as tiny energy generating batteries inside cells, which, if faulty, can be a source of serious diseases passed on genetically by inheritance. Thus, DNA of two parents is blended with the healthy mitochondria of a female donor to remove the faulty DNA. Undoubtedly, the purpose is laudable, salutary and is a unique breakthrough for specialised medical science seeking a panacea to genetic maladies
Learning from the Indian experience of commercial surrogacy which involves use of IVF technology for fertilisation of natural or donor sperms or eggs, and which embryos are nurtured in a rented surrogate womb to give birth to a child, much can be said about the aftermath as to what happens in stark reality, upon a surrogate baby being born. Without an enabling legislation defining parentage, identifying nationality, defining roles of parties, settling terms of the surrogate mother and providing legislative safeguards to prevent the abuse of such a process, taking over a natural process to create 3 parent designer babies,` is an equally dodgy proposition. Same sex or single parents and unmarried partners in surrogacy arrangements further complicate the matter. Even though, in India, The Transplantation of Human Organs Act, 1994, bans the sale or loaning of organs and any commercialisation of the trade of human organs, renting of wombs or obtaining sperms or eggs in the commercial market is rampant. So much so, the Supreme Court decision in Baby Manji Yamada (AIR 2009 SC 84) observed that “Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms ‘wombs for rent’, ‘outsourced pregnancies’ or ‘baby farms’.” Codified law, to this date, to check, regulate, overlook and control surrogacy is still not in existence. The Assisted Reproductive Technology (Regulation) Bill first came in 2008 to legislate on surrogacy. Thereafter in 2010 and 2013, the Bills came again with amendments. Now it is pending before Parliament in a stated 2014 version. Currently, the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005, made by the Indian Council for Medical Research (ICMR) regulate surrogacy practices in India. However being non statutory and not enforceable, these Guidelines do not provide any legislative answers besides not giving much needed solutions to perplex questions which hound such relationships.
Need for a regulatory law
Surrogacy is often creating “stateless children” with disputed questions of citizenship, nationality and parentage being recorded on official documentation. Unfortunate surrogate children have also been abandoned without any legal recourse. Besides, there is no mechanism or specialist judicial forum geared to handle complex issues arising from surrogacy. A regulatory environment through an appropriate legislation is much needed to check malpractices and curb the unethical surrogacy trade which haunts the scene in the backdrop of financial transactions changing hands. A much needed question of maintaining anonymity of a surrogate mother or a donor balanced with the right of privacy as also the right of an individual to know his original parents needs to be deliberated upon seriously to look at resolution of future problems. Moreover, a comprehensive consolidated surrogacy legislation having extraterritorial application needs to be put in place for regulating it. A serious look is required to stamp out illegal trading in gametes and embryos. Likewise, mandatory coordination of statutory welfare agencies is much needed to overlook possible loopholes for erring and defaulting parents wishing to abandon surrogate children born with unfortunate congenital defects. As of now, all this is now blissfully missing, while surrogacy thrives as a raging ship in dark, loomy unchartered waters.
Whilst most countries shun commercial surrogacy, some jurisdictions permit altruistic practices. The British Human Fertilisation and Embryology Act 2008, regulates the surrogacy practices in UK. The Hague Conference on Private International Law had commissioned a study and released a report titled “Parentage/Surrogacy Project” prepared by the Permanent Bureau at The Hague in March 2014. Seventy Six Member States and the European Union will decide in the next council meeting in April 2015 as to whether, and if so, how this project needs to be continued. In the perspective of the British three parent IVF law in the making, this study ought to continue to provide the much needed mutual international cooperation in this emerging concept of parenthood which has emerged as an offshoot of surrogacy. This silent and subtle occurrence has bloomed a new jurisprudential concept of parentage with allied issues arising from practices of surrogacy and the three parent families concept. This cannot be ignored. Roles and practices in the realm of the family will have to be re-written. The requirement of an international participation is much needed.
In so far domestic fronts are concerned, an Inter-Ministry dialogue is the call of the day. The ICMR must setup a multi dimensional body to look into and finalise the challenges and issues which arise from commercial surrogacy, a practice now to stay. Making a homogeneous composite law to look at all perspectives to improve the existing situation on the ground maybe the true exercise in reality. Equally important will be the role of the Government in harmonising a composite surrogacy legislation with existing laws governing marriage, adoption and effecting children. An international perspective too must be sought. Be it surrogacy or three parent babies, a regulatory law must be put in place simultaneously to control and counter balance all rights, duties and responsibilities. This facet of thought process must concurrently culminate in an equally forceful controlling legislation to prevent disastrous consequences. Equally, UK too needs to initiate a meaningful dialogue globally before the first designer baby is conceived and set to be born in 2016.