"MEDICO-LEGAL ANALYSIS OF ARTIFICIAL INSEMINATION AND SURROGACY" BY- Law Padho.

 This article is written by  Kunal Yogesh Nadkarni ,  a student at   Symbiosis Law School, Hyderabad , where he discusses about "MEDICO-LEGAL ANALYSIS OF ARTIFICIAL INSEMINATION AND SURROGACY" 

TOPIC: MEDICO-LEGAL ANALYSIS OF ARTIFICIAL INSEMINATION AND SURROGACY

CHAPTER I: INTRODUCTION

“Science gave us forensics. Law gave us crime” – Mokokoma Mokhonoana

On an estimate, in accordance with the “Indian Society of Assisted Reproduction”, 10-14% of the population of India are affected due to infertility and the failure to conceive naturally leads to the resort of Assistive Reproductive Technology (ART) for giving birth. Artificial insemination can be stipulated as the depositing of semen into the vagina or the uterus through a series of techno-advanced instrument in order to constitute pregnancy which is not achievable through sexual intercourse.[1] Taking into consideration, the higher rate of success, the process of Intra Uterine Insemination (IUI) is the most widely adopted practise of Artificial insemination. [2] Fundamentally, motherhood and childhood have been contemplated as matters of substantial public interest and have been emphasised in the “Directive Principle of State Policy” (DPSP) and “International Covenant on Economic, Social and Cultural Rights”.[3]

In relation to “Sec 112 of the Indian Evidence Act 1872”, it is presumed that sexual intercourse is absolutely primitive for the birth of a child. However, in case of Artificial insemination contradicts the above-mentioned provision. Only the “Delhi Artificial Insemination Act, 1995” has been enacted for governing Artificial insemination. Thus, in India, there are no explicit legislations administering Artificial Insemination, even though the Indian Council of Medical Research (ICMR) have issued guidelines governing the same, but due to the absence of any legislative support, such recommendations are not binding in the court of law.[4] There are a series of medico-legal aspects[5] which can potentially arise in the practise of AI, namely, (i) Adultery, Dissolution and invalidity of marriage, (ii) Issue of Legitimacy and inheritance of property, (iii) Rights of the sperm donor, (iv) Consent of the parties (v) Banking of semen and (vi) Identity of donor. [6]

Surrogacy can be advocated as the process wherein a female contemplates to a pregnancy through an Assistive Reproductive Technology (ART), wherein she conveys a child for another person.[7] There are two prominent methods of effectuating surrogacy, Firstly, Altruistic surrogacy and Secondly, Commercial surrogacy.[8] “The Surrogacy (Regulation) Bill, 2020”, has been implemented with the fundamental purpose of promoting and protecting the interest of the surrogate and the child, governs the establishment of surrogacy boards and lays emphasis on the notion that only an Indian citizen can opt for surrogacy.[9] Furthermore, there are a series of medico-legal aspects[10] which can potentially arise in the practise of Surrogacy, namely, (i) Consent of the surrogate, (ii) the Surrogacy contract, (iii) Parental rights, and (iv) Surrogacy in unmarried persons.[11]

The scope of the research paper will be restricted to the purview of a Medico-Legal analysis of Artificial Insemination and Surrogacy. Fundamental emphasis will be laid on the medico-legal aspects which can potentially arise in the process of the above-mentioned practices. Furthermore, the judicial perspective in relation to the above-mentioned practices will be analyzed in reference to decided and landmark precedents. Also, the diverse Assistive Reproductive Technology (ART) techniques and methods will be examined. Lastly, a comprehensive study on the existing legislations and enactments in relation to the above-mentioned practices will be drawn with the sole purpose of examining the legality of such practices.

CHAPTER II: ARTIFICIAL INSEMINATION: Potential Medico-Legal aspects, Techniques of reproduction as well as Statutes enacted.

2.1 Introduction

Artificial Insemination is prominently employed by the medical community as a means of cure and treatment for infertility wherein, procreation through natural means is not feasible.[12] Thus, on an estimate, taking into consideration the success rate, a ratio of 70-75 % of pursued “Assisted Conception” pregnancies develop within a time-frame of 3-4 months post the initiation of treatment.[13]

2.2 There are three fundamental types of AI, namely[14]:

·                     AIH: “Artificial Insemination Homologous”, wherein the semen of the spouse or the homologous donor is employed for the concerned process.

·                     AID: “Artificial Insemination Donor”, wherein the semen of a person other than the spouse is employed for the concerned process.

·                      AIHD: “Artificial insemination by pooled husband and Donor sperm”, wherein the frozen semen of the donor is pooled along with the semen of the husband is employed for the concerned process.

2.3 The traditional norms and practises of adultery as well as non-consummation of marriage give rise to a series of potential medico-legal aspects in relation to the legal standing and legitimacy of the procedure of Artificial Insemination:

·         Adultery, Dissolution and Invalidity of marriage

In the case of “Mac Lennan v. Mac Lennan”,[15] the fundamental relationship between artificial insemination and adultery, its medical, social, ethical and legal implications were comprehensively analysed and thus, the trial court came to a conclusion that it did not amount to adultery.[16] Furthermore, in the case of “Orford v. Orford”,[17] it was rendered  that artificial insemination without the prior consent of the husband amounted to adultery and can be held as a reasonable ground for divorce under the provisions of the “Hindu Marriage Act, 1955”. Also, impotency could be considered a reasonable ground for “voidable marriage”.[18] Furthermore, taking into consideration the Indian scenario, only the “Delhi Artificial Insemination Act, 1995” has been enacted for governing the purpose of Artificial insemination. Thus, in India, there are no explicit legislations administering Artificial Insemination, even though the “Indian Council of Medical Research” (ICMR) have issued guidelines governing the same, but due to the absence of any legislative support, such recommendations are not binding in the court of law.[19] However, the question surrounding adultery, as a by-product of artificial insemination, does not fall within the purview of “Section 497 of the Indian Penal Code”, [20]taking into consideration the mere fact that penetration is a fundamental element to constitute sexual intercourse, which in turn is an essential element to constitute adultery. [21]

·         Issue of Legitimacy and Inheritance of property[22]

In relation to the issue of legitimacy, both in the English as well as Indian law, it is legally presumed that an offspring born during the existence of marriage is legitimate. Although in adherence to “Sec 112 of the Indian Evidence Act 1872”, it is presumed that sexual intercourse is absolutely primitive for the birth of an offspring.  However, in case of Artificial insemination contradicts the above-mentioned provision. “Pater est quem nuptiae demonstrant”: “He is the father whom the marriage indicates to be so”. The Hon’ble Supreme Court while dealing with the issue of legitimacy rendered a series of judgments. Firstly, in the case of “Goutam Kundu v. State of West Bengal”,[23] the SC denied the necessity of cohabitation in adherence to the above-mentioned provision. Secondly, In the case of “Kamti Devi v. Poshi Ram”,[24] the SC rendered that if the wedded couple were residing together during the time-frame of conception, the legitimacy and conclusiveness will be irrebuttable. The same was reiterated in the case of “Banarasi Dass v. Teeku Dutta”[25] by the Apex Court. Furthermore, in the case of “Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik” [26], substantial emphasis was laid on the interest of justice, wherein the court of law must be furnished with the fundamental available scientific knowledge and not bank on mere presumptions. Also, in case of a conflict between conclusive proof and advanced scientific proof, the later will prevail. Also, another alternative would be legally adopting the concerned child in adherence to the “Birth and Death Registration Act, 1969” as prescribed in the case of “Strad v. Strad”.[27] .

·         Consent of the Parties

Fundamentally, the process of In-vitro fertilization cannot be initialised without the prior consent of the female patient, spouse as well as the donor in form of a written undertaking containing the purpose sought to be achieved, methods adopted as well as the risks and hazards involved. [28] In the case of “Orford v. Orford”, [29] it was held that artificial insemination without the prior consent of the husband amounted to adultery. Furthermore, in the case of “Doombos v. Doombos”,[30] it was held that Artificial Insemination without the prior consent of the spouse is obstructive to public policy and thus establishes adultery.

·         Banking of semen 

The semen must be collected in a sterile container, post three days of abstinence. Furthermore, the semen prominently must be used within a time frame of two hours of storage, during which it must be duly scrutinized and examined in adherence to the level of quality (Number, Motility and Morphology) as well as its physical characteristics.[31]

·         Identity of donor

The identification of the donor or the recipient must not be disclosed. [32] Also, the medical practitioner is duty bound not to execute a sex determination test with the fundamental purpose of termination of the female foetus or termination of pregnancy in adherence to the “Medical Termination of Pregnancy Act, 1971”.

·         Rights of unmarried women

There is no legal or statutory bar on an unmarried woman to undergo the process of Artificial insemination and the child born through such process will be considered legitimate. [33]

CHAPTER III: SURROGACY: Potential Medico-Legal aspects, Techniques of reproduction as well as Statutes enacted.

3.1 Introduction

Surrogacy can be advocated as a contract wherein a woman (surrogate mother) carries and delivers a child through Assistive Reproduction Techniques (ART) on behalf of the infertile couple[34]. Surrogacy is a combination of science and society which enables it to become a reality and leads to be reasonable resolution for both the parties involved. [35]

3.2 The fundamental types of surrogacy practices employed in India are [36]:

·         “Traditional Surrogacy”, wherein the process of insemination is ingenuously or unnaturally employed with the semen of the male spouse of the concerned couple.

·         “Gestational Surrogacy”, wherein an embryo from the sperm and ovum is fertilized in a test tube and further employed to the womb of the surrogate mother.

·          “Altruistic Surrogacy”, wherein the surrogate undertakes the process of surrogacy without any sort of financial compensation, other than medical expenses involved in the process concerned.  

·          “Commercial Surrogacy”, wherein the surrogate receives financial compensation in addition to the medical expenses involved in the process concerned.  

3.3 In the absence of any statutory legal framework prior to the establishment of “The Surrogacy (Regulation) Bill, 2020”, prominent unethical exploitations and norms give rise to a series of potential medico-legal aspects in adherence to the legal standings of surrogacy:

·         Surrogacy Contract

The concept of commercial surrogacy in India was upheld by the Hon’ble Supreme Court in the case of “Baby Manji Yamnda v. Union of India”.[37] Furthermore, the court held that the diverse aspects of the surrogacy contract and rights and obligations of the parties involved must be governed by statutory law and directed the enactment of the same.[38] The same was reiterated by the Gujarat High Court in the case of “Jan Balaz v. Anand Municipality”,[39] wherein it held that there is no statutory law prohibiting surrogacy contracts. Thus, it was fundamentally contemplated that the predominant purpose of the surrogate contract is to facilitate the birth of the surrogate child to the concerned couple in exchange of financial remuneration and the child will derive all inheritance of biological parents from the intending parent.[40]

However, in the course of adjudication, the court of law laid fundamental emphasis on the need to implement and regulate a statutory law to govern the process of surrogacy in India. Thus, acting on the direction of the court of law, “Indian Council of Medical Research” (ICMR) in consonance with the “Ministry of Health and Family Welfare” implemented the “Assistive Reproduction Technologies (Regulation) Bill, 2008” for the purpose of governing the same.

3.3.1 The following is an overview of the legal aspects involved:

·         Lack of enforceability within India: As reiterated in the case of “Baby Manji Yamnda v. Union of India”, it was held that in the absence of the signatures of the parties involved, the surrogacy contract is null and void and thus has no legal standing.

·         Lack of uniform monetary standards: Although the ART Bill specifies a provision for payment of compensation but does not lay down the purview of such compensation in terms of the minimum or maximum quantum of monetary payment.

·         Lack of enforceability in overseas Legal jurisdiction:  Taking into consideration the mere fact that the purview of enforceability of the ART Bill is territorial and geographical in nature, a surrogate contract which may receive legal approval in India will have no legal effect in respect to an overseas jurisdiction.

·         Inconsistency with the Indian Evidence Act: The following statute ascertains the presumption of legitimacy or parentage on the notion that the women giving birth to the offspring is considered the legal mother of the child.[41]

·         Lack of Contractual Enforcement:  Although the surrogacy agreement is governed by the “Indian Contract Act, 1872” and the “Specific Relief Act, 1963”, the question fundamentally arises in terms of enumerating liability or damages in a potential environment wherein the surrogate mother refuses to deliver the custody of the child to the intended parents. Thus, there are shortcomings in terms of enforcement of such contract in relation to such breaches. In the case of “Re P” [42], the court of law laid emphasis on the notion that penal liability shouldn’t be enforced against a surrogate mother despite breach.  Furthermore, in the case of “Re TT” [43]it was held that surrogacy agreements are not binding surrogacy contracts. Substantiating the same, the UK court of law did not hold the surrogate for breach of contract on the mere ground that a surrogacy agreement is unenforceable. On the contrary, in the case Re Paternity,[44] it was held that the surrogacy agreement is prominently enforceable and not against public policy taking into consideration the mere fact that essential elements of a valid contract, consensus ad idem and considerations are fulfilled.

3.4 “The Surrogacy (Regulation) Bill, 2020”

The Bill has been implemented with the fundamental purpose of promoting and protecting the interest of the surrogate and the child, governs the establishment of surrogacy boards and lays emphasis on the notion that only an Indian citizen can opt for surrogacy.[45] Furthermore, the concerned will aims to constitute surrogacy boards at the national as well as state level and administer and empower authorities for regulation and governance for the practice of surrogacy.

3.5 The following is an overview of the medical aspects involved:

·         Consent of the Parties

Prominently, surrogacy must be employed only when it is physically impossible for a woman to conceive naturally. Furthermore, the surrogate mother shall sign an agreement expressing her consent as well as a series of medical tests to prevent transmission of diseases for the best interest of the child, must be conducted. Also, primitively the surrogate must also provide a declaration that she has not received blood transfusion in the time frame of last 6 months. [46]

·         Parental rights

Fundamentally, the birth certificate of the child shall be prepared in the name of the intended parents. In terms of the monetary remuneration, the precise value must be decided in deliberation between the parties involved.  Lastly, to summarise the process of question of parenthood, the surrogate mother as well as the concerned donor must initialise a declaration wherein, they relinquish all their parental rights in relation to the offspring.[47]

·         Surrogacy in unmarried persons

Single women cannot opt for surrogacy, however exceptions in cases of divorced women and widows in an age group of 35-45 years, provided they obtain an authentication of recommendation from the “National Surrogacy Board”. [48] In the case of “Hema Vijay Menon v. State of Maharashtra”, [49]it was rendered that the “right to motherhood” is established within the purview of “Article 21 of the Constitution” of India and thus, the right to reproduce is enshrined as a part of the fundamental right of a woman.

CHAPTER IV: CONCLUSION

As enumerated in the paper above, universally acknowledged conventions as well as the provisions of the Constitution have affirmed the notion that every woman has the “right to motherhood”. Thus, laying substantial emphasis on the following statement, in adherence to the statistical analysis, over 10-14% percent suffer from infertility. Modern Technological advancements in the field of medical science have enabled such women to experience motherhood through Assistive Reproductive Technology (ART) such as Artificial Insemination and Surrogacy. However, despite the technological advancements, due to the absence of adequate legislative and statutory backing, a series of potential medico-legal aspects arise as enumerated in the research paper.

Firstly, taking into consideration the practise of Artificial Insemination, there is no express statute governing and regulating the following practise. On pertinent analysis of the provisions of law, it can be inferred that the Court of Law in a series of judicial decisions have laid fundamental emphasis on the notion that the practise will not fall within the purview of “Section 497 of the Indian Penal Code” prominently due to the fact that the essential element of sexual intercourse has not been fulfilled. However, if the process is initiated without the prior consent of the spouse, it can be a reasonable ground for a “voidable marriage”. In terms of legitimacy, the intended couple will be considered as the legal parents of the offspring.

Secondly, taking into consideration the practise of Surrogacy, the Court of Law in the cases of Baby Manji and Jan Balaz upheld the practise of commercial surrogacy in view of the mere fact that there is no express statutory bar on surrogate contracts. Furthermore, fundamental emphasis was laid on the need implement and regulate a statutory law to govern the process of surrogacy in India. Thus, the “Assistive Reproduction Technologies (Regulation) Bill, 2008” and “The Surrogacy (Regulation) Bill, 2020” were implemented for governing the same. However, despite the implementation of statues, a series of medico-legal issues such as lack of enforcement and inconsistency with prominent statues, potentially arises.

Lastly, in terms of the right of single women in adherence to Assistive Reproductive Technology (ART), in terms of Artificial Insemination there is no statutory bar, however, in terms of surrogacy, it is subject to authentication from the “National Surrogacy Board”.

Author- Kunal Yogesh Nadkarni,

Symbiosis Law School, Hyderabad.

END NOTES

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[1] K.S. Narayan Reddy, The Essentials of Forensic Medicine and Toxicology, 2017 edition.

[2] Mukesh Yadav, Medico-Legal & Ethical Analysis of Artificial Insemination, Journal of Indian Academy of Forensic Medicine, Vol. 28(4), December 2006.

[3] Diksha Munjal Shankar, Surrrogacy & The Legal Overturns: The Indian Tale, Journal of the Indian Law Institute, Vol. 56 Issue 1, JSTOR, January-March, 2014, pp. 62-77.

[4] Bhawna Gandhi, The curious case of artificial insemination and legitimacy provisions, The Daily Guardian, ed. January 4, 2021.

[5] Alfred Koerner, Medicolegal Considerations in Artificial Insemination, Louisiana Law Review, Vol 8 Issue 4, May 1948.

[6] Kaushik Yuvraj, A review of Artificial Insemination & its Medico- Legal aspects, International Journal of Applied Ayurveda Research.

[7] Black’s Law Dictionary, ed. 2019.

[8] Diksha Shankar, Commercial Surrogacy in India, Journal of the Indian Law Institute, Vol. 58 Issue 3, JSTOR, September 2016, pp. 350-366.

[9] Bhupinder Yadav, the new surrogacy bill protects the interest of all, Hindustan Times, ed. February 6, 2020.

[10] Alfred Koerner, Medicolegal Considerations in Artificial Insemination, Louisiana Law Review, Vol 8 Issue 4, May 1948.

[11] R.S. Sharma, Social, ethical, medical & legal aspects of surrogacy: An Indian scenario, Indian Journal of Medical Research, November 2014.

[12] K.R. Mythili, Artificial Insemination – Legal Issues, Journal of the Indian Law Institute, Vol.39 Issue 2, JSTOR, December 1997, pp. 348-358.

[13] Mukesh Yadav, Medico-Legal & Ethical Analysis of Artificial Insemination, Journal of Indian Academy of Forensic Medicine, Vol. 28(4), December 2006.

[14] Kaushik Yuvraj, A review of Artificial Insemination & its Medico- Legal aspects, International Journal of Applied Ayurveda Research.

[15] Mac Lennan v. Mac Lennan, 1958 S.L.T 12.

[16] Alfred Koerner, Medicolegal Considerations in Artificial Insemination, Louisiana Law Review, Vol 8 Issue 4, May 1948.

[17] Orford v. Orford, 1921 49 Ontario LR 15.

[18] Kusum, Artificial Insemination and the Law, Journal of the Indian Law Institute, Vol 19 Issue 3, JSTOR, July-September 1977, pp. 283-295.

[19] Bhawna Gandhi, The curious case of artificial insemination and legitimacy provisions, The Daily Guardian, ed. January 4, 2021.

[20] Priyasha Saksena, Artificial Insemination and Family, National Law School of Indian Review, Vol. 20 Issue 1, JSTOR, 2008, pp. 76-94.

[21] K.R. Mythili, Artificial Insemination – Legal Issues, Journal of the Indian Law Institute, Vol.39 Issue 2, JSTOR, December 1997, pp. 348-358.

[22] Dr. Sandeep Kulshrestha, Artificial Insemination and Presumption of Paternity in India, International Journal of Advance Research and Innovative Ideas in Education, Vol. 4 Issue 2, 2018, pp. 2395-4396.

[23] Goutam Kundu v. State of West Bengal, 1993 A.I.R. 2295.

[24] Kamti Devi v. Poshi Ram, 2011 5 S.C.C. 311.

[25] Banarasi Dass v. Teeku Dutta, Civil Appeal No. 2918 of 2005.

[26] Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, 2014 2 S.C.C. 576.

[27] Strad v. Strad.

[28]Mukesh Yadav, Medico-Legal & Ethical Analysis of Artificial Insemination, Journal of Indian Academy of Forensic Medicine, Vol. 28(4), December 2006.

[29] Orford v. Orford, 1921 49 Ontario LR 15.

[30] Doombos v. Doombos, 139 N.E.D. 844.

[31] Kusum, Artificial Insemination and the Law, Journal of the Indian Law Institute, Vol 19 Issue 3, JSTOR, July-September 1977, pp. 283-295.

[32] K.R. Mythili, Artificial Insemination – Legal Issues, Journal of the Indian Law Institute, Vol.39 Issue 2, JSTOR, December 1997, pp. 348-358.

[33] Barbara Kritichevsky, The umarried women’s right to artificial insemination: A call for an expanded definition of family and legal rights, National Library of Medicine, Vol. 4 Issue 1, 1981, pp. 1-42.

[34] R.S. Sharma, Social, ethical, medical & legal aspects of surrogacy: An Indian scenario, Indian Journal of Medical Research, November 2014.

[35] Bhupinder Yadav, The new surrogacy bill protects the interest of all, Hindustan Times, ed. February 6, 2020. : https://www.hindustantimes.com/analysis/the-new-surrogacy-bill-protects-the-interests-of-all/story-F4DJy6L5QsfYk57npKVB3H.html

[36] Pikee Saxena, Surrogacy: Ethical and Legal Issues, Indian Journal of Community Medicine, Vol 37 Issue 4, 2012, pp. 211-213.

 

[37] Baby Manji Yamnda v. Union of India, Writ Petition No. 396 of 2008.

[38]Sonali Kusum, Legal Glitches facing Surrogacy Agreement in India: file:///C:/Users/user/AppData/Local/Temp/CFC0FA22-6E4C-456D-A920-D069C37A118F.2-b__civil.pdf

[39] Jan Balaz v. Anand Municipality, L.P.A No. 2141 of 2009.

[40] Diksha Munjal Shankar, Surrrogacy & The Legal Overturns: The Indian Tale, Journal of the Indian Law Institute, Vol. 56 Issue 1, JSTOR, January-March, 2014, pp. 62-77.

[41] R.S. Sharma, Social, ethical, medical & legal aspects of surrogacy: An Indian scenario, Indian Journal of Medical Research, November 2014.

[42] Re P, 2008 1 FLR 177.

[43] Re TT, 2011 EWHC 33.

[44] Re Paternity, 2013 WI 66.

[45] Bhupinder Yadav, the new surrogacy bill protects the interest of all, Hindustan Times, ed. February 6, 2020.

[46] Pikee Saxena, Surrogacy: Ethical and Legal Issues, Indian Journal of Community Medicine, Vol 37 Issue 4, 2012, pp. 211-213.

[47] Mary Shanley, “Surrogate Mothering” and Womens’s Freedom, Signs, Vol. 18 Issue 3, JSTOR, 1993, pp. 618-639.

[48] Alok Kumar, Surrogacy and the Laws on Maternity Benefit, Journal of Law and Society, Vol. 52 Issue 3, January 21, 2017, pp. 2349-8846.

[49] Hema Vijay Menon v. State of Maharashtra, Writ Petition No, 3288 of 2015.