A popular English daily lists out several strange laws legislated in efforts to maintain law and order in diverse legal regimes across the world. They range from legislation that makes illegal for chicken to lay eggs on Sundays to legislation that require the permission of a husband by a wife to wear dentures. The constant refrain has always been that there are a lot more laws than necessary. A country that is regulated by rule of law is not necessarily a country that has enormous laws. The efficacy of enforcement mechanism alone makes the difference. We have laws to prevent crimes; we have laws to punish practitioners of untouchability; there are laws that protect women and children. All of them have not guaranteed a crime free society. They have not effaced the scourge of untouchability. Our women cannot still walk on the roads in hours of darkness without fear. Our children do not lead lives of frolic. Many of them slave under hard labour and are the breadwinners for their families even if they get but just a slice of bread to bite into.
In a country where there is a population of more than a billion, you may think that it is a country that abounds in fertile couples. The truth is that the problems of infertility are confined not to anyone particular race, religion or country. It is prevalent all across the globe. The WHO estimates that 8-10% of the population has problems of infertility. The science of medicine has alleviated the malady by Assisted Reproduction Techniques (ART). In Vitro Fertilization (IVF) is a procedure that helps couples that are unable to conceive a child in a regular manner by fusing the sperm from the male to the egg of the female to fertilize in the laboratory through what is called in vitro (literally, “in glass”) procedure and implant the fertilized egg in the womb of the female. In cultures that recognize the institution of the marriage itself as necessitous to procreation and perpetuation of the clan, infertility could be a ground for break down of marriages. It is commonplace that the slur has a gender bias, so that a woman that does not become pregnant becomes the target of harassment, even apart from the insistent dowry demands that might mar the harmony of the wedlock. Times when the small family norm was not yet a national population policy, it was possible to adopt children from within the immediate family circle, when the couple was infertile and find fulfillment of their wants. Now with small families becoming a reality among the population living in small towns and villages also, the practice of adoption is not resorted from within family members. With the advancement of medical techniques for assisting infertile couples for increasing chances of pregnancy, the advantages are too obvious to be missed. The right to have a child is not merely a nature of personal preference but an issue of social good, for the society benefits by fulfilled families.
Fertility clinics are around in every corner in major cities and the persons that run them have booming lucrative practice. Surprising, there are no laws in India to regulate this practice. In UK the passing of Human Fertilization and Embryology Act in 1990 saw the establishment of the Voluntary Licensing Authority and later the Interim Licensing Authority whose main role was to monitor the developments in Assisted Reproduction. The Act aims to regulate research on embryos, to protect the integrity of reproductive medicine and to protect scientists and clinicians from legal action and sanction. The UK Legislation has stood as a benchmark piece of legislation and used as template for legislation in other jurisdictions. Science and technology move faster than laws and even the British enactment is found to be insufficient in several areas such as cloning and several biomedical research that raise important ethical considerations in the realm of manipulation of genes to create ‘designer babies’. The legalization of same sex marriages import the idea of perpetuation of family only through techniques of surrogate parenthood either from a donor sperm outside the realm of marriage or from a person within the boundary of marriage to a surrogate parent outside the marriage. What should be the money to be paid for the attendant medical care for bearing the child may be a crucial question to be addressed.
In India, the regulation of fertility clinics is sought through stringent legislation which is reported to be in the post -draft stage and the government is also considering notification of strict guidelines and their mode of enforcement to regulate the functioning of fertility clinics till the law is enacted. Instances are reported when couples who have gone to fertility clinics, have realized to their shock that the sperm or egg of one or the other was not from one of the couples themselves and abortions are resorted due to complications arising from DNA mismatch. The new legislation or guidelines, it is reported, would enable even a single woman who wishes to have a child without marriage to be impregnated by IVF techniques. The child that may be born will have an entry of the mother in the Birth and Death Registration Act but the father’s name may not be disclosed, without stigmatizing the child as illegitimate. The legislation may even favour childless widows or widowers to help them secure a child through a donor sperm or through a surrogate mother. It will make possible gays and lesbians to beget children. Along with this legislation, enactments relating to marriages, adoption, registration of births and deaths, abortion, crimes, etc, will have to be drastically amended. All these changes cannot come about through a legislative exercise unaided by a healthy debate from the knowledgeable sections of the society.
Lawyers have played significant roles in the past in fashioning legislation by their legal skills and their knowledge of the needs of the society. Here is a chance for the legal community to address all these issues from legal, social, psychological and ethical perspectives. The round table is being readied now. Do you have views to express?