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Assisted Reproductive Technology
Any medical technique that attempts to obtain a pregnancy by means
other than by intercourse is defined as Assisted Reproductive
Technology. ART helps to solve the problem of childlessness. In
other
words these techniques manipulates the sperms and ooctes outside
the
body and the gamete of embryos are transferred into the uterus;
ART
includes Artificial Insemination (AI), In Vitro fertilization
embryo
transfer (IVF, ET), etc.
Scientific societies around the world, such as the
ASRM, ESHRE and
IFFS, have drawn up guidelines for the safe and ethical practice
of ART.
The European Union and the Governments of several countries such
as
Australia, the UK and the USA have taken steps to accredit and
supervise
the performance of infertility clinics. At present here are
neither
guidelines nor a legislation in regard to the practice of ART in
India.
AI-
Artificial Insemination
AI is the introduction of semen into the vagina or cervix of a
female by
any method other than sexual intercourse. There is evidence that
people
have been using artificial insemination to induce pregnancy in
animals
for centuries, and in recent times this procedure has become so
simplified that it can be performed without the aid of a doctor or
fertility specialist. It can be used to overcome both female
infertility
problems (where the cervix or fallopian tubes pose barriers to
normal
insemination). In human AI has become a useful to impregnate women
who
are physically capable of conceiving and bearing a child but who
cannot
do so through sexual intercourse, usually because there husband is
sterile or impotent. Fresh semen is obtained from the husband or
from
some other male donor and is introduced by syringe into the
women's
vagina or cervix during her menstrual period. The semen can also
have
been previously stored in a sperm bank. This technique is reasonable
successful in achieving conception and pregnancy. There are
different
types of artificial insemination.
1. A.I.H. Artificial insemination with semen obtained from the
husband.
2. A.I.D. - Artificial insemination with semen obtained from a
donor.
An AIH child raises no question of surrogate parenthood being a
product of its own parent's seeds. It can be regarded as
legitimate,
and process of impregnation both justifiable and unobjectionable.
In the
case of AID, fertilization takes place inside the woman's body
with two
possible variations. An AID child is, thus, genetically linked to
a
parent outside its own family.
Earlier, a popular form of artificial insemination was AIC, in
which the
sperm of the husband and a donor were mixed. The advantage of this
procedure was that it could not be conclusively stated that the
husband
was not the father of the child. This was important in an age
where
artificial insemination was considered to be immoral and
tantamount to
adultery, with the resulting child being considered as
illegitimate and
having no inheritance rights. With the acceptance of artificial
insemination in society, the popularity of AIC diminished.
History Of AI
Many people think of artificial insemination as a modern
technology but
it has a long history. Thus, apparently artificial insemination
was
attempted on Juana, wife of King Henry IV of Castile. In 1677 the
Dutch
scientist Anton van Leeuwenhoek saw spermatozoa through the newly
invented microscope. Efforts to develop practical methods for AI
were
started in Russia in 1899. Papers on artificial insemination in
horses
had been published by 1922. By the mid 1940's artificial
insemination
had become an established industry. In 1949 improved methods of
freezing
and thawing sperm were developed. The idea for adding antibiotics
to the
sperm solution came in 1950 from Cornell. Improved methods of
sperm
collection were developed in the 1970's and 1980's. Research to
improve
methods of artificial insemination continues and is usually
studied
under animal science curriculums.
AI is typically recommended for the treatment of infertility due
to:
1. Mild to moderate male factor infertility
2. "Unexplained" infertility
3. Cervical mucus insufficiency
4. Hostile cervical mucus
5. Various structural abnormalities in the woman
AI
And Challenges To Legal System
In India there is no legislation regarding artificial
insemination.
But the doctor has to follow general principal of law.
A child born as a result of artificial insemination is considered
as legitimate, provided the child was born during lawful wedlock.
Conception of the wife by AI does not amount to consummation of
marriage; if there was no successful sexual act due to the
impotence of
the husband. The marriage can be declared null and void and in
that case
the child will illegitimate.
"AID" does not amount to adultery, even if it was done without the
consent of the husband. For adultery to be committed both the
parties
should be physically present and engage in sexual act and sexual
union
should take place. AI is not equivalent to sexual intercourse (AIR
373-1984)
AI does not contravene ethical principles of medical practice. The
doctor while doing an insemination has to observe the following.
1. Doctor should obtain signed request from the wife and husband
and
wife
2. Should obtain a written informed consent from both the husband
and
wife.
3. Should keep detailed clinical records
4. The details of the donor should be kept as a secret in the case
of
A.I.D.
5. A female attainder nurse should be present at the time of
insemination;
6. It is better to obtain the consent of the donor and his wife.
7. Should observe reasonable skill and care and prevent
complications.
An AID child is practically
divorced from the spiritual, mental emotional, and physical lives
of the adoptive parents thus, besides the question of morality and
human values involved in it, AID could give rise to the
socio-legal issues listed below:
Before or after delivery-
Does AID amount to consummation of marriage?
Does AID amount to
adultery? Can the non-consenting spouse claim divorce, on the
ground of adultery or non-consummation of marriage? Can the
stranger donor of the male or female seed, claim to be the spouse
of the accepting donee?
Post- Delivery:
Is the child of AID, a legitimate child? If so, to whom is the
paternity or maternity of the child to be attribute? Is the
woman's
non-consenting husband liable to maintain such a child as its
father? What are the custodial or visitation rights of a surrogate
father or mother? What would be the nature of relation of the AID
child with a natural or adopted child, of the same family? Would
the rule of prohibited degrees be operative on a child of AID? If
so, when, how and with whom? How and from whom the child of AID
would be entitled to inherit? Can it also be subject to rules of
inheritance vis a vis consenting or not consenting relatives?
Would the doctor be liable in law, following the birth of a
defective child or failure of the process of AID?
Lamaritata v. Lucas (823 So.2d
316 (2002)) The donor and the recipient entered into a contract
whereby the donor provided sperm to the recipient with the
expectation that she would become pregnant through artificial
insemination. The agreement provided that if childbirth resulted,
the donor would have no parental rights and obligations associated
with the child. The donor, in an attempt gain parental rights of
the twin boys who were born to Ms. Lamaritata argued that he was
not a sperm donor but instead the biological father, and thus
should be afforded parental rights. Issue is does a sperm donor
have any legal parental rights. Court held that In an attempt to
avoid the enforcement of the contract, Mr. Lucas argued that he
was not a sperm donor. Instead, he argued that he was part of a
commissioning couple with the mother. A commissioning couple is
defined as the intended mother and father of a child who will be
conceived by means of assisted reproductive technology using the
eggs or sperm of at least one of the intended parents. There were
no facts to establish this, and the intent of the parties was
established by contract. A person who provides sperm for a woman
to conceive a child by artificial insemination is not a parent.
Thus, the sperm donor here has no legal parental rights.
In
Vitro Fertilization (Ivf) And Embryo Transfer (Et):
Commonly known as 'Test Tube Baby' IVF involves fertilization of
an ovum outside the body and consequently transfer of embryo into
the uterus of the woman. "In vitro" is Latin word mean "in glass",
which referred as the test tubes, however neither glass nor test
tubes are being used; the term is used generically for laboratory
procedures. IVF is probably the most widely practiced assisted
conception procedure in the world. The procedure does not need
admission at any step and is conducted on an out patient basis.
The success rate for each in vitro fertilization cycle is around
20-30%. Many factors affect success rates, including patient age,
sperm and egg quality, reproductive health, duration of the
infertility, and medical expertise. Because multiple embryos are
often transferred, the risk of multiple births is the major
complication in IVF.
History Of IVF
The technique was developed in the United Kingdom by
Doctors Patrick Steptoe and Robert Edwards. The first so-called
"test-tube baby", Louise Brown, was born as a result on July 25,
1978 amid intense controversy over the safety and morality of the
procedure.
The first in-vitro
fertilization, to produce test tube baby "Durga" in India and
second in the world was performed by a Calcutta based doctor
Dr.Subhash Mukhopadhyay on October 3, 1978. Both these events
caused public debate, criticism and even social professional
ostracism of those involved in initiating life outside the body.
Besides these obstacles the techniques of IVF has survived as a
method of choice for treating some type of infertility.
The first successful IVF
treatment in the USA (producing Elizabeth Carr) took place in 1981
under the direction of Drs Howard and Georgeanna Seegar Jones in
Norfolk, Virginia. Since then IVF has exploded in popularity, with
as many as 1% of all births now being conceived in-vitro, with
over 115,000 born in the USA to date.
IVF is done in the following
cases:
1. Women with blocked fallopian tubes
2. Ovulation problems.
3. Mild degree of seminal problems for the man.
4. Unexplained infertility cases.
5. Presence of seminal antibodies in the woman's body.
Steps involved in IVF
Procedure:
1. Ovarian stimulation by hormonal injections to produce multiple
eggs
2. Monitoring of the response by ultrasound scans and blood tests
3. Egg retrieval with the help of a needle under local / general
anesthesia
4. Fertilization of the eggs in laboratory
5. Transfer of the resulting embryo(s) into the uterus of the
woman Blood test performed 15 days after embryo transfer, to
assess the establishment of pregnancy. If the treatment procedure
is successful, one or more of the embryos will implant in the
uterus and pregnancy will result, just as it happens in the
natural process of conception.
Another aspect of IVF,
cryopreservation has in recent times gained popularity.
Cryopreservation is the process of cooling and dehydrating an
embryo to allow it to be stored for a long period of time. This
process has gained popularity because it allows a woman undergoing
IVF procedures to use possibly all of her retrieved and fertilized
eggs. Cryopreservation eliminates the need to implant all of a
woman?s resulting embryos at once, which something results in
multiple pregnancies. In addition, the process reduces the number
of time a woman may have to undergo egg retrieval if the first IVF
attempts are
unsuccessful in producing a pregnancy.
Regulatory events
In many countries t regulate many aspects of IVF practice. In such
settings regulations may dictate:
· The number of oocyte that can be fertilized.
· The number of embryos that can be transferred.
· The use of cryopreservation.
· The use of third party reproduction.
· The ability to perform tests or interventions on the embryo.
Some problems of IVF
1. Eggs and Embryos have been stolen from women and given to other
or to researchers.
2. Fertility drugs have been sold illegally.
3. Medical records have gone amiss.
4. Women recruited as surrogate mother have refused to part with
the newborn baby that they have conceived to assist couples to
bear a child.
5. India has been known to play host to visiting foreign IVF
fertility experts to carry out such procedures that have been
banned in the home country o9f visiting experts the case of
injecting round spermatic into the egg cytoplasm is a good example
of such misdemeanor.
6. Sale of eggs and embryos are subtly advertised over the
internet by some IVF clinics in India. IVF costs approximately
$10,000 per cycle, and it takes an average of four cycles to
achieve a successful pregnancy
General Principles Related To Art
Informed Consent:
After duly counseling the couple / oocyte/semen donor, an informed
and written consent should be taken from both the spouses as well
as the donor, as the case may be. They should be explained the
various risk factors associated with the procedures in simple
language and the words that they can understand. These include
risks associated with ovarian hyperstimulation, anaesthestic
procedures, and invasive procedures like laparoscopy, aspiration
of ovum etc. They should also be explained the possibility of
multiple pregnancies, ectopic gestation, increased rate of
spontaneous abortion, premature births, higher perinatal and
infant mortality as well as growth and developmental problems.
They should also
be explained that there is no guarantee on the success / failure
of the procedure.
Selection of Donor:
The physician assumes the responsibility in selection of the
suitable donor on following terms:
Ø Complete physical examination of the donor should be done to
ascertain the good health of the donors of semen, oocyte or
embryo.
Ø The donor should be healthy
with reasonable expectation of good quality eggs or sperms and
preferably with proven fertility record.
Ø The physical characteristic
and mental make-up of the donor should match as closely as
possible to that of the spouse of the recipient, specially with
reference to colours of the skin, eyes and hair, height and build,
religious and ethnic background, the educational level and ABO
blood type.
Ø No person suffering from any
sexually transmitted disease (e.g. syphilis, gonorrhea, chlamydia,
herpes, HIV etc.), infectious disease (e.g. hepatitis B, HIV) or
genetically transmissible disease should be used as donor.
Sexually transmitted diseases should be ruled out within a week of
obtaining the seminal fluid.
Ø It is essential that donated
semen is cryo-preserved and used only after 6 months as this would
enable the center to retest the donor after 6 months for HIV and
eliminate the potential risk of HIV transmission in the ?window?
period of HIV infection.
Ø Identity of the donor as
well as the recipient should be protected from each other.
However, all the records of the donor must be preserved in order
to trace him / her in case of any eventuality and should be
confidential.
Ø Confidentiality of the
entire procedure and its outcome is advisable and therefore, no
relative should be accepted as a donor in order to avoid
identification and claims of parenthood and inheritance rights.
Ø Written consent of the donor
should be taken towards unrestricted use of sperms or oocyte for
AR, as well as an undertaking from him / her that he / she will
not attempt to seek the identity of the recipient. In case the
donor is married, the written consent of the spouse should be
taken, if possible.
Ø It is also desirable to
restrict the use of semen from the same donor to a maximum of 10
pregnancies to avoid the possibility of an incestuous relationship
occurring among the offspring's at a later date.
Ø In case of the oocyte donor,
incurring any health problems related to the process of donation,
the costs of the subsequent health care should be borne by the
potential recipient couple irrespective of whether they receive
oocyte donation as planned or not.
Specific Principles
Legitimacy of the child born through ART:
A child born through ART shall be presumed to be the legitimate
child of the couple, born within wedlock and with consent of both
the spouses and with all the attendant rights of parentage,
support and inheritance. Sperm/oocyte donors shall have no
parental right or duties in relation to the child and their
anonymity shall be protected. A child can be given status of
legitimacy also by adoption. In Strand v. Strand. The husband had
been given visitation rights in a divorce petition, but the wife
later tried to have these rights rescinded in the ground that her
child was illegitimate. She, however, admitted that she had
undergone AID with her husband's consent. The court held that the
husband should retain his right and because he had consented for
AID the child was not illegitimate. According to the decision of
the court the child had been ?potentially adopted or semi-adopted?
by the husband, thus, he was entitled to the same rights as those
acquired by a foster parents, who has formally adopted a child.
In Doombos v. Doombos (139,
N.E.,2d 844 (1956))on a wife's petition for divorce and custody of
the child born to her consequent to AID, consented to by the
husband, one of the questions before the court was:
whether such a child is legitimate and belongs to the mother only?
The Court held that a child so conceived was not a child born in
wedlock and therefore illegitimate. As such it was the child of
the mother alone and the husband had no rights or interest in the
child, not even that of visitation.
In another case
Gursky v
Gursky ((1963)242 N.Y.S. 2d 406) the Supreme Court of New York
ruled that a child on the basis of an implied contract on his part
or the doctrine of equitable-estoppel.
Anonymous v.
Anonymous.((1964)246N.Y.S. 2d. 835) a husband had consented to his
wife's therapeutic impregnation. On the wife's claim for alimony
the husband pleaded that the child was illegitimate. Rejecting his
plea, the court awarded the alimony on the ground that consents in
writing carried with it an implied promise to furnish support for
the resulting progeny.
In People v. Sorenson
(1967)
62 Cal. Rep. 462 ) a man from California was, convicted of
criminal non-support, sentenced to jail for one year on probation
with an order to make support payments for a child born to his
wife consequent to AID after his written consent during the
wedlock. On appeal however, the court held that for the purposes
if the criminal statute the husband was not the child's father.
Adultery in case of ART:
ART in a married woman with the consent of the husband does not
amount to adultery on part of the wife or the donor, as there is
no sexual intercourse involved. AID without the husband's consent
can be ground for divorce or judicial separation.
The question whether recourse
to AID in the absence of husband's consent amounts to adultery was
probably raised for the first time before a Canadian court on
Oxford v. Oxford(58 O.L.R. 251 (1921)). The husband petitioned for
divorce on the ground of the wife's adultery. The wife asserted
that the child born to her was the result of AID. The court
disbelieved the wife and emphatically stated that such a woman
commits adultery. However, no definite answer was given. The court
observed that
sexual intercourse is adulterous because in the case of the woman
it involves the possibility of the introducing into the family of
the husband a false strain of blood. Any act on the part of the
wife which does that would, therefore, be adulterous.
In case of
Doombos v. Doombos in January, 1956,
before the superior court of Cook country, Illinois, the wife
petitioned for declaration, inter alia, as to whether AID
constituted adultery and whether it is contrary to public power.
The trial court held that-
Heterologous artificial insemination with or without the consent
of the husband is contrary to public policy and good morals and
constitutes adultery on the part of the mother.
In Maclennan v Maclennan (1958
S.L.T. 12 ) wherein the scoattish trial court judge Lord Wheatly
adhering to the traditional view laid down the following
propositions from the English law.
Ø For adultery to be committed there must be the two parties
physically present and engaging in the sexual act at the same
time.
Ø To constitute the sexual act there must be act of union
involving some degrees of penetration of the female organ by the
male organ.
Ø It is not a necessary concomitant of adultery that male seen
should be deposited in the female's ovum
Ø The placing of the male seeds in the female ovum need not
necessarily result from the sexual act and if it does not, but is
placed there by some other means (like AID), there is no sexual
intercourse.
Supporting this view the Judge
further clarified that:
Just as AI extracts procreation entirely from the nexus of human
relationship on or outside the marriage, so does the extraction of
the nexus of human relationship from the act of procreation remove
AI from the classification of sexual intercourse. If the view is
correct that AI by a donor without the consent of the husband is
not adultery as the law interprets that term.
The question of adultery, as a
result of AID, in India does not arise because under Section 497
of the IPC 1860, sexual intercourse must be present. Therefore,
neither the recipient nor the donor of the seed would be guilty of
adultery because there is no physical union in the form of coitus.
Under the Indian law, but for the consent or connivance of her
husband, commission of sexual intercours3e with a woman by a man,
having knowledge or reason to believe that she is another?s wife,
makes him alone guilty of the offence of adultery. To such
intercourse, penetration, irrespective of ejaculation, is an
essential constituent.
Consummation of marriage and
AID:
A marriage is, actually, said to be consummated only when the
parties have sexual intercourse, with full or at least partial
penetration, after its solemnization. However, if a wife is
inseminated artificially with the husband's seed and give birth to
a child, does the conception or birth of the child constitute
consummation of marriage? In an English case where the wife had
become pregnant by AI with the husband's seed, it was argued that
it was a voluntary act of the wife that led t conception and so
the marriage should be treated as approbated
In R.E.L v. E.L,(1949 Probate
Division 211)a psychologically impotent husband's wife took
recourse to AIH and one year thereafter left the husband, without
being aware of the fact that she had become pregnant.
Subsequently, she gave birth to a child. After some time. She
filed a petition for annulment of her marriage on the ground of
husband's inability to consummate it. The question before the
court was whether wife's willing recourse to AIH and subsequent
birth of the child amounted to sufficient approbation of marriage
so as to prevent her from seeking its annulment? Rejecting this
argument, the court granted the decree of nullity of marriage and
observed:
If the child should be made illegitimate it is most regrettable,
but the stigmas of birth are of less effect that they were, and
the sons are not now judged by the errors of their parents.
In India the question whether
AI amounts to consummation of marriage will be answered according
to the personal law context in which it is raised. Thus under the
Parsi Marriage and Divorce Act, 1936, non-consummation within one
year of marriage owing to willful refusal of the respondent is a
ground for divorce on the same ground, with no specific time limit
either party can sue for a decree of annulment of marriage under
the Special Marriage Act,1955 only the wife can seek annulment of
marriage on non consummation of marriage due to the impotence of
the husband.
Right of an unmarried woman to
AID:
There is no legal bar on an unmarried woman going for AID. A child
born to a single woman through AID is deemed to be legitimate.
However, it is universally recommended that AID should be
performed only on married women and that, too, with the written
consent of her husband, a two-parent family being always better
for the child whose interests must outweigh all other interests.
Conclusion And Suggestion
With the increased use of advanced technology in assisted
pregnancies, more and more families will be able to realize their
dream of parenthood. Families must consider the legal consequences
of the medical choices they are making. They should plan for the
legal process by which the infant born to them will be legally
acknowledged as their child. The birth of this long awaited child
should not be clouded by anxiety or legal uncertainty.
In conclusion, it can be
stated that in formulating an Indian law on Artificial
Insemination and In Vitro Fertilization the following
fundamental issues will need to be necessarily tackled by policy
makers:
§ The ethical and moral consequences of AI and IVF.
§ The primacy to be accorded to the biological need to bear a
child.
§ The repercussions of AI and IVF on the stability of family life.
§ The socio-economic advantages, of adoption vis a vis AI
§ The effect of AI and IVF on population control policy of the
country.
Pending legislation doctors
who perform AID on childless couples should observe the following
precautions:
o Before performing the operation, the doctor should insist upon
the knowledge and full consent of both the adoptive parents.
o To avoid the chances of any
inconsistent claim the identity of the donor of the seed to the
recipient-couple and vice versa should not be disclosed nor the
donor should know the result of AID.
o To avoid the possibility of
transmission of any genetic defect on to a child, the donor and
the surrogate parent should be, free from all physical and mental
defects.
o To avoid any kind of legal
dispute, the consent in writing of the spouse of the donor or
surrogate parent, for donation of seed or surrogacy as the case
may be, should also be obtained by the doctor.
o To avoid the chances of
prosecution of the doctor for any sexual or other offences, the
presence of a nurse or a medical assistant should be compulsory
when AI is performed embryo is transferred or seed is procured by
the donor.
However, as already stated to
have a proper sanction for all such propositions and to deal
effectively with many other aspects of the medical practice of
artificial insemination and in vitro fertilization, an independent
and comprehensive legislation on the subject is required.
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Artificial
Insemination and In Vitro Fertilization and challenges caused to
legal system
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Articles:
The
author can be reached at:
vidhya_shenoy@legalserviceindia.com /
