This Article is written by Bharatee Preeya A.K. student of Alliance University.
The general desire of humankind is to leave a piece of them in the world. In fact without the baby many people consider the family incomplete. One in every four couples in developing countries had been found to be affected by infertility states WHO report. ART (Assisted Reproductive Technology) plays a major role in aiding these couples in bringing their dream comes true. It is estimated that, “around 5 million babies have been born worldwide since the first IVF baby in 1978” and today, “around 1.5 million ART cycles are performed each year worldwide, with an estimated 350,000 babies born”. The developing technologies around the world had also brought the various innovations in the ART. The recent trend we could see in the ART is the posthumous reproduction. Basically it’s a unique procedure where the sperm will be collected from the dead person and it will be preserved at the sub-zero level temperature for later use. By this method the baby will be born even after the death of either of the spouses by using their own cells. Most of the time this technique is used for sperm retrieval as the retrieval of eggs is a more complicated process. Apart from all these scientific issues there are a plethora of legal and societal issues involved in this method of ART.
One society in India is a completely orthodox society whereas the other has already broken their stigma and they have huge westernized influence in them. Even though ART is considered to be an unorthodox one, the increase in the number of the ART centers deceives us as Indians gradually move towards adopting the technology. When we talk about the Indian law beyond the 2010 ART regulatory rule drafted by ICMR there is no provision dealing with the posthumous reproduction. Section 3.16.5 of the draft stated that for the Posthumous Retrieval, insemination of women with husband semen after death of the husband, the sperm should be collected before the death of her husband and his consent for the cryopreservation of his sperm is necessary. But no guideline is there for the retrieval of the husband’s sperm posthumously. There are a lot of requests arising in the court of law by the widows and by the parents of the deceased to the retrieval of the sperm for their genetic continuity. But unfortunately, Indian laws and the society are not ready to handle the posthumous reproduction that is sperm retrieval and usage after the death of the person with the consent of the widow or by his parents. Indian Evidence Act 1872, defines an illegitimate child as born after 280 days following a dissolution of the marriage. By the ICMR guidelines the cryopreserved sperm should be quarantined for 6 months before its usage for the prevention of venereal diseases and then later after the insemination is done the probability of the women to conceive within three months of time would be practically impossible. So by the Indian laws the child born through sperm retrieval after the death of the person would be considered as the illegitimate child. However after the ART regulatory Bill the legitimacy of the child born through the aid of ART is legally accepted but not socially.
LAWS OF OTHER COUNTRIES
Countries like Israel, Australia, USA, and UK had a strong legal framework on this posthumous reproduction. As said, in Australia three states namely South Australia, West Australia, Queensland have posthumous gametes retrieval governed by the organ donation law. The relevant laws state that removal of tissues may be authorized for the therapeutic purpose or medical purpose or research purpose and the officer of the hospital must be satisfied that the deceased would not have objected to the removal. The courts have interpreted that the word tissues in the act may include gametes and we can conclude that the gamete retrieval of the reproduction purpose may include under the medical purpose.
Important aspect to be noted is that a gamete after the death of the person should be retrieved within 36 to 70 hours of his death and the body should be stored under the low temperature for the successful fertilization. So most of the courts in Australia have made a very liberal view in the case of Sperm Retrieval and it has a different view on sperm usage as the sperm retrieval is the urgent process and the evidence for the retrieval will be handled liberally. It is formalized in South Australia that posthumous reproduction is only permitted when sperm (it does not cover eggs) is retrieved before the deceased person’s death and when the deceased consents to posthumous use of his sperm. But all the state laws made it mandate to validate the posthumous reproduction only if (i) A letter of consent was provided by the deceased; (ii) The deceased’s partner is responsible for the procedure, or, if the deceased was a woman, her male partner is involved in the surrogacy arrangement; and (iii) If they get approval from the Patient Review Panel.
The UK had the same provisions like Australia, but it was dealt with under The Human Fertilisation and Embryology Act 1990.
USA and Israel
In Israel, the right to procreate and to become a parent is fundamentally protected, which is derived from the principle of human dignity, the right to privacy, and the principle of autonomy. The notion about posthumous reproduction is more or less the same in both countries. Both the countries laws about posthumous are very much upgraded regarding posthumous and the court of law plays a very important role in the rulings of the ART and posthumous, as they are very common in both the countries. In Israel also the deceased female partner is solely individually authorized to use the sperm not the parents, but due to the cultural background of Israelis and other factors in many cases the rights of the grandparents is also recognized by the recent amendment.
ADVANCEMENT OF JUDICIARY
In all these countries Judiciary plays a prominent role in streaming this technique. To be more precise, laws and the guidelines on the posthumous reproduction are mostly governed by the precedents. A lot of legal systems have recognized the rights to procreate and become a parent as fundamental rights. Judiciary plays an active role in validating the rights of the spouse, grandparents and also about the children born out of it. The US laws restrict the grandparents to go for the posthumously using their children’s sperm or egg, as the laws of the land consider that parents have no common interest in the child’s reproduction decision. Over the past several years, more and more parents have been interested in retrieving and utilizing their deceased children’s gametes. This was caused due to the high number of deaths of young people in accidents and other traumas before their marriage.
Despite all these laws and contentions the SC of USA in some cases allows the parents of the deceased to retrieve and use gametes like the case of W. R es. L. R ev. The Israeli courts often allowed this method for the young soldier’s parents to have their grandkids. Like the cases of OmriShahar and the recent case of 2016 Supreme Court (Jerusalem), Anonymous v. Anonymous the courts legally recognize the grandparent hood.
CONSENT OF THE KID
A major claim against the PMSR is that it may not be in the best interest of the child. The critics point out that the interest of the deceased partner or the parents is not only the essential element the child may suffer economically and emotionally – the child will not be allowed to inherit and they may feel as the replacement for the deceased just serving as their memorial. Bringing a fatherless or motherless child into the world will harm the child. In case the child is brought up by their grandparents then they will be grown up with older individuals suffering. Another argument is also raised for the existing child of those couples, as there will be wider distribution of the existing resources to the other kid will end up in bringing the hatred.
In comparing the laws of these lands our country stepped back because this may lead to a lot of chaos and misuse in our country. Our country is still not ready to face these changes in the ways of reproduction and if we even think of adopting the laws of the other countries, we may consider the laws of Israel as the culture and the lifestyle of both the countries are more similar than any other countries. But bringing the PMSR in our country will definitely bring up lots of issues in the court of law as an additional burden will be passed on the judiciary to handle these complicated cases. The long judicial proceeding system of our country will also be a trouble for the medical personnel as these processes should be done in a very short period of time. Leaving discretion to the Hospital Administration will be another troublesome process and the result will lead to medical negligence and we could end up with the same result as what happened during surrogacy. Unless our country is ready with strong regulatory laws, India can’t handle such issues which are legally, socially and scientifically complicated. Let’s hope our society and the laws are ready for the upcoming changes and challenges.
- Permanent Bureau, Hague Conference on Private International Law, Preliminary Report on the Desirability and Feasibility Of Further Work On The Parentage / Surrogacy Arrangements Report, Prel. Doc. No. 3B of March 2014 for the attention of the Council of April 2014 on General Affairs and Policy of the Conference, at para 15, (Sep 15,2021, 2.30pm), https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy.
- ART regulatory Act,2010
- Indian Evidence Act,1872
- Human Tissue and Transplant Act 1982(WA) s 22; Transplantation and Anatomy Act 1979(Qld) ss 21 and 22;
- Assisted Reproductive Treatment Act, 1988 (SA) ss 9, 46 and 85
- Australian Government, National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (2017), (Sep 16,2021 2.30PM)https://www.nhmrc.gov.au/_files_nhmrc/file/guidelines/ethics/16506_nhmrc_ethical_guidelines_on_the_use_of_assisted_reproductive_technology-web.pdf, https://www.nhmrc.gov.au/art
- Article 150A of Constitution, Same held in Nahmani v. Nahmani [1995–6] I sr
- US Supreme Court case ,W. R es. L. R ev. 1159, 1177 (2010)
- J Law Biosci,Creating life after death: should posthumous reproduction be legally permissible without the deceased’s prior consent?,(Sep 16th2021, 2.30pm)https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6121062/
- Anonymous vs. Anonymous, File No. 7141/15 (Dec. 22, 2016), Nevo Legal Database.