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LIVES FROZEN FOR FUTURE


46 years after the first “test tube” baby was born by In Vitro Fertilisation (IVF) in India, there is another perspective on use of frozen gametes by families in India. Delhi High Court in decision of October 4 has decided plight of parents seeking frozen semen samples of their predeceased son, lying stored in fertility labs of a Delhi hospital. The son, administered chemotherapy, had died of cancer, consented to storage and preservation of his semen sample in hospital’s IVF lab to deal with infertility issues at a later stage. Upon refusal of hospital to release semen samples, his parents approached Delhi High Court. Considering the international position on “Posthumous Reproduction” (PR) and “Postmortem Sperm Retrieval” (PMSR), and examining process of conceiving a child using ART after death of one or both biological parents, Court examined legal positions in different countries, including jurisdictions requiring explicit consent for PR. Court concluded that there is “no international consensus or uniformity” on subject of PR. Holding that frozen semen samples were for “fertility preservation” and that neither Surrogacy Regulation Act or Artificial Reproductive Technology Act in India dealt with the situation, High Court would exercise its extra ordinary jurisdiction for granting appropriate relief. Delhi High Court held that frozen sperms “constitutes property and the parents are the legal heirs of their deceased son. With no prohibition on Posthumous Reproduction, and consent having been given by the Petitioners son prior to his death, the Court is of the opinion that this is a suitable case for the release of the sperm sample to the Petitioners.” Court added that “it is made clear however that the said semen sample shall not be used for any commercial or monetary purpose.” Court also directed the Ministry of Health and Family Welfare for considering “whether any law, enactment, or guidelines are required to address issues related to Posthumous Reproduction or Post-mortal reproduction.”

 

This salutary verdict clearly marks opening up of new vistas of beneficial and ethical use of IVF technology and possible surrogacy for use of genetic material of a family member for giving birth to his progeny. Court upheld the maintainability of the petition by holding that “merely because contracts are entered into between donors and IVF clinics in respect of use and disposal of human reproductive material, it cannot be said that there is no public element.” This benevolent approach of the Court reflects a humanitarian view, without technical legal and statutory hinderances which present a vacuum in law on subject of PR and PMSR. Rather than following a traditional and conventional approach of declining relief on grounds of lack of legislation on subjects of PR and PSMR, Court in its judicial wisdom rendered the erudite verdict in a contemplated welfare jurisdiction. The development of this IVF jurisprudence marks the beginning of a new era of protective reproductive autonomy, whereby it may be possible to “Will” sperms, eggs and embryos for ethical family purposes and carrying of future generations of progeny in posterity. 

 

In the past about 20 years, Artificial Reproductive Technology (ART) procedures and surrogacy have been instrumental in challenging traditional ideas of childbearing, family structures, and especially parenthood. Irrespective of marital status, the right to have a family, to family life, to go through childbirth or experience it in some cases, and receive surrogate help in others, is continuously evolving. In appreciating how this concept and its dimensions have evolved, society and practices have ignited the law to change. Men and women are able to find meaning in parenthood, without having to go through childbirth, while surrogates have been able to effectively give up their rights as a mother. Women have learnt to experience childbirth, contrary to societal notion of what it means to be a mother giving birth naturally. This transformation, facilitated by ART and surrogacy, has paved the way for segregating social parenthood from biological childbirth.

 

In ART procedures, like gene restructuring therapy, there have also been evolvement of medical technology in restricting or preventing life threatening diseases. The medical treatment of making three parent babies reportedly involves a medical technique, in which an intervention is made in the fertilization process, whereby a small amount of faulty genes in a woman’s egg is replaced with the healthy genes 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 babies, supposedly being born disease free, stems from blocking inheritance of genetically incurable diseases being passed down generations. The technique is designed to curtail diseases passed down the maternal line, which can be a source of serious diseases passed on genetically by inheritance. Thus, genes of two parents is blended with the healthy material of a female donor.

 

What started as a technique for freezing female eggs to enable spouses with cancer to store eggs prior to chemotherapy has now also become a service perquisite. A spouse can freeze her eggs to promote her career and climb the corporate ladder by deferring motherhood. In another dimension, posthumous impregnation and creation of babies by assisted and collaborative modern techniques such as in-vitrio fertilisation or cryopreservation of gametes and eggs may evoke strong notions about life, parenthood and immortality. Such posthumous artificial reproduction has given rise to legal issues that current outdated laws cannot address. Banking is no longer associated with just money but with sperms and eggs as well.


However, with the fast-paced advancement of medical science, and evolution of understanding of society on what it means to have a family, the ART and surrogacy law is being enacted in the opposite direction. Despite the development of various ART procedures and demand for surrogacy, most of this benefit remains outside the purview of legally binding regulatory frameworks in India. At this crucial juncture of the intersection of medical science and the law, interests of various stakeholders need to reconcile. The commissioning couples irrespective of marital status, nationality, or religion, besides the donors, surrogates, the medical fraternity, and the society, often find themselves at par, but at variance and in conflict with law. The consideration of the overall society as a stakeholder is critical, and this is why an appropriate regulatory law needs to be put in place. It is in this perspective that the role of regulatory frameworks becomes imperative. Hence, it is for the Government to make a restrictive and regulatory law and not banish surrogacy. Thus, there can be no dictatorship in surrogacy.

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Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
© Anil Malhotra, 2021
Contact International Family Lawyer Anil Malhotra
Contact International Family Lawyer Anil Malhotra
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