DESIGNER BABIES: TWO MOTHERS AND A FATHER - BY ANIL AND ANKIT MALHOTRA

Whilst India after over a twenty year yawning period in coming to reality with being the first country to ban completely 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 was banned since genetically modified embryos could not be implanted in the womb of a woman. On the House of Lords approving it and upon grant of royal assent, UK now legally permits 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.

Indian example

Learning from the now banned Indian experience of commercial surrogacy, which had involved use of IVF technology for fertilisation of natural or donor sperms or eggs, and which embryos were nurtured in a rented surrogate womb  to give birth to a child, much can be said  about the aftermath as to what happened in stark reality, upon a surrogate baby being born. Happily that situation is no longer possible in India. In any case, in any country, without an enabling legislation defining parentage, identifying nationality, defining roles of parties, settling terms of surrogate mothers and providing legislative safeguards to prevent 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 matters. Even though, in India, The Transplantation of Human Organs Act, 1994, bans the sale or loaning of organs and any commercialisation of trade of human organs, sadly 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’.”  Now Surrogacy (Regulation) Act, 2021 restricts surrogacy to legally married Indian couples. Foreign nationals are explicitly barred. Commercial surrogacy is banned.  

Need for a regulatory law

Surrogacy had often creating “stateless children” with disputed questions of citizenship, nationality and parentage being recorded on official documentation. Unfortunate surrogate children had also been abandoned without any legal recourse. Even now, there is no mechanism or specialist judicial forum geared to handle complex issues arising from surrogacy. A regulatory environment through gaps in law is still missing to check malpractices and curb the unethical surrogacy trade which still haunts scenes in 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 still 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.

International perspective 

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. Seventy Six Member States and the European Union will decide in the next council meeting 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.  

Indian Responsibility

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 designer babies are conceived and born.

*Author, a practicing lawyer, has ten books pertaining to issues of private international law. He can be reached at anilmalhotra1960@gmail.com. www.anilmalhotra.co.in

Advocate, Malhotra & Malhotra Associates, India.

LL.M [London]&Felix Scholar, School of Oriental &African Studies, University of London, London.

Email:ankitmalhotra97@gmail.com, Website :https://www.ankitmalhotra.co.in