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Property Rights of The Infant of Assisted Reproductive Technology

In countries like that of Ukraine, California, United States, and India, there is no hard and fast rule over Surrogacy. Over a period of time, India has evolved as an excellent market for commercial surrogacy mainly because of the ready availability of the poor surrogates. Absence of hard and fast rule in India and increased instances of exploitation of women and born infants through this technique has led the government of India to pass “The Surrogacy Bill, 2016”. This bill addresses issues such as commercialization of surrogacy.

The Unaddressed Field:
Still, a field which seems unaddressed by the Indian Law seems to be the creator of future complexity as with time use of such technology for the procreation of getting legal heirs will be as normal as using a mobile phone these days. The field which I am addressing is the property rights of an unborn, where the transfer is for the benefit of the unborn and the fate of the right depends on the birth of the unborn.

Section-13 read with Section-14 of the Transfer of Property Act allows the transfer of property rights through vested interest on an unborn. According to the section, no direct transfer can occur, but a child in the mother's womb (en ventre sa mere ) is a competent transferee (i.e. property rights can be transferred to him),

Provided two conditions are followed:
# Transfer for an unborn must be preceded by a life interest in favor of a person in existence at the date of the transfer (i.e. presence of an intermediately living person is mandatory) and,
# Only absolute interest may be transferred in the favor of the unborn (i.e. Life interest in favor of an unborn cannot be created).

The Sections also implies some other facts:
# Unborn must get whole of the residue or the remainder of the property,

# If a series of vehicles are created and unborn is born before the death of the last vehicle, he cannot stop him to enjoy the property which is vested on him as life interest by the main owner.

# If the unborn is not born, or not conceived before the death of the last vehicle, the vested interest in the favor of the unborn will revert back to the main owner, that means the vested interest will only be contingent once the unborn is born and that too before the death of the last vehicle created by the owner.

# It also implies that if such interest is built beyond minority age of the concerned unborn, it will be deemed to be void and will be liable to get back to the main owner, from where the ultimate interest came.
Section 113 of the Indian Succession Act, 1925 is also identically worded like that of Section 13 of the Transfer of Property Act, 1882.

Current Scenario:
As a chosen procreator of life, Mother tends to cherish each and every moment of her motherhood. For the few unfortunate desirous ones, for whom their physiological conditions do not allow to cherish the most beautiful phase of their life, they start looking for alternatives.

Earlier when technology was not advanced, people knew only two methods of having a legal heir, either by natural conceiving or by adoption.

But today, Assisted Reproductive Technology (ART), has proven to be a more precise alternative for turning the dreams of such childless couples to have their own child. These technologies include procedures like that of artificial insemination, fertility medication, (IVF) in vitro fertilization and surrogacy.

I know property and motherhood both seem to be a total unconnected regime right now. But while deciding the rules and regulation for distribution of the property, one issue that seems totallyuntouched is, the unborn who is talked about in the Section- 13 of the Transfer of Property Act, will be who?
The one that has genetic parents or mother or father or the one that is supposed to be raised by the intended parents? What if the genetic father and the intended father is the same and genetic mother is not the intended mother? The possibilities might vary on.

Subsequently, with chances of more and more use of these techniques and lowering down of fertility rate of people due to changing the environment and distorted life schedules, the court might face the issues in other several aspects. Aspects, where the dilemma of choosing between the genetic and intended parents or parent will prevail and then our statutes which have no such clear provision regarding the same, may fail to provide an answer.

The Problem:
In the light of Section-13 of the Property Act and the dilemma which is created in deciding between genetic and intended parent issue, let s examine certain hypothetical conditions:
The Hero of our hypothesis is A , who is the owner of a property worth one million. Being disturbed by his son, X extravagant and spoiled life, he decides to give it to the unborn of his only son X . X is married to Y , so A decides to make Y as the vehicle for the property.

1st Scenario:
X is facing a physiological issue like that of erectile dysfunction so unable to procreate naturally. Y is medically considered fit for conceiving. They both decide to have a child by the help of artificial insemination, which is a purposeful introduction of sperm into the uterus of the woman. In such pregnancy the bearer of the child is the genetic mother, along with it the donor of sperm, i.e. the genetic father is the intended father. X stores his sperm in the sperm bank but before Y conceives, X dies. After the death of X several possibilities may arise depending on the use of the sperm stored in the sperm bank, as still the chances of birth of an unborn sustains. Thus chances of vesting of the property on the unborn also sustain, as the vehicle of the property Y is also still surviving.

Situation 1:
After the death of X , Y decides to go along with the last wish of her husband to have a child and conceives from X sperm which was stored in the sperm bank. But the class two legal heirs, (who otherwise would have got the property in absence of X and his unborn child), objects to the decision of X . According to them, chances of vested interest on the unborn of X , over the property extinguished with the death of X and no one can recognize the child born out of a dead man s stored viable sperm. Now, the question before the honorable court will be, Can they recognize the vested interest of the unborn, born out of a viable sperm of a dead man?
For suppose, the court recognizes the same, as logically the child born will be genetically related to X and mother of the child is Y who was the lawful wife of X .

Situation 2:
For suppose Y being shocked by the sudden death of her husband, decides to drop the plan of conceiving the child, but the frozen sperm is still protected in the Sperm Bank. That means the chances of getting the unborn born diminishes with her decision of not using it for the purpose of conceiving. Therefore, the vested interest over the unborn becomes void and all rights will return to the main owner, A and after his death to the other legal heirs, as per the Succession Act.

Now the problem arises, when she remains single but after 8 years she decides to conceive again and uses the stored sperm of her late husband X .

Now the question arises that in such situation will the interest again be vested on the unborn and the chance of the property will again depend on the fate of the birth of the child? As the deed of transfer never got frustrated and technically the chances of having the contingent interest on the unborn still persists upon the birth of the child.
What if in the same situation she Y gets married to Z, but still out of love or affection or inability of Z , decides to conceive by using stored sperms of her late ex-husband Y ? Will the decision taken by the court in the above will context change? Or it will remain the same, as it was never mentioned in the deed that the unborn should be born only when X and Y remain in the wedded relationship? Technically speaking, the genetic makeup of the child will be of the combination of X and Y, that was earlier supposed to be.

Situation 3:
Suppose, considering the relinquishment of Y over the stored sperm of X , and seeing the long 8-year gap, sperm bank decides to donate it to M who approaches the bank for sperm so that with the help of ART, she is able to conceive and suffice her desire for motherhood. After the necessary procedure, she conceives a healthy child, somehow during her pregnancy, M comes to know about the vested interest over her unborn child and she claims for it and matter goes into the court. What will the judges decide in such a situation, does the unborn still has the vested interest, as the genetic father of the child is still X, which died 8 years before his birth? But here complexity arises with the fact that X was never married to M in fact both of them never knew each other or the family. Even the intention of A while preparing the deed was never of the opinion that the unborn will be a genetic combination of his son X and some other woman other than Y .

2nd Scenario:
Suppose both X and Y are living but the problem is with Y and she is able to produce egg but somehow she always faces miscarriage. With the consultation of a medical expert, both X and Y decide to opt for a near relative S as a surrogate for their child. In this case they both are the genetic mother and father of the child but the child is born out of surrogate mother, who is not married to X. Will the court comply with the same decision which it took in one such similar situation, in which it was held that the surrogate mother was considered as real mother of the child? Or will rely on the judgment like that of California Supreme Court, where gestational surrogate was considered to have no parental right on the basis of the gestational surrogacy contract?

3rd Scenario:
Suppose both X and Y are living and the problem is with both X and Y . With the consultation of a medical expert, both X and Y decide to opt for a near relative S as a host surrogate and the child is conceived by the sperm and ova donated by the sperm bank. Now,

neither X , Y or S are the genetic parent of the child. In fact, as per the rules of sperm and ova bank, the details of the original genetic mother and father can t be shared. In such a situation, what will be the decision of the court? As, if as per prior situations, determining the genetic parents was forming the basis of the judgment, then it would completely fail in such a situation. Or the court will take reference from cases like that of the U.S. Court? In which the Court gave importance to the traditional surrogacy agreements and held that when a couple goes for embryo and sperm implantation which is non-genetically related to them and a surrogate is intended to procreate their heir, they become the lawful parents of the infant and have legal rights over the child.

Conclusion:
By analyzing the whole of the above issues, it won t be wrong to say that the purpose of Section-14 of the Transfer of Property Act, 1882, that talks about the rule against perpetuity (Perpetuity mainly arise by the application of section 10, 13 and 14 ) is defeated if any such possibility arises, as the basic motive of a rule against perpetuity is to curb the transfers that make a property inalienable for an indefinite time period.

But by creating future remote interest, in the favor of the unborn, conceived with help of assisted reproductive technology, in absence of a clear provision will add on the chances of perpetuity because, now scientifically for conceiving, one Doesn't need a man or woman. Sperm and ova are sufficient to solve the purpose. So Doesn't the need to be specified laws regarding the same, become more relevant? Doesn't the question seem alarming, that ultimately, who should be unborn? The child who is genetically related or who are produced by the womb of the woman married to the man whose unborn is entitled to get the property? Doesn't the system need to look into the complex possibilities which are waiting in the future? If, Yes, then definitely either we need to abolish the concerned sections which are giving birth to such issues or need to frame better and more laws regarding the same.

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