Pub. Info. – “Reproductive Rights & Technologies” by Sonali Kusum, Legal Literacy Module Published by Centre for Women & Law, National Law School of India University Bangalore 2013. ISBN No. 978-93-83363-00-1.
Right to form a family is one of the basic human rights, taking its origin from the right of an individual to procreate or reproduce. This right has been given due significance in several International Human Rights Conventions, the foremost of such being UDHR which proclaims every individual, either male or female, of full marriageable age has a right to form a family. Accordingly, it has been reiterated in subsequent Human Rights Conventions like ICCPR which again guarantees the similar right of an individual to form a family. Besides these primary human rights convention, right to family has also been protected and promoted under International Conference on Population and Development Programme. It grants recognition to the basic rights of all couples and individuals: right to reproduce, right to procreate, right to form a family.
One of the distinct features in this is that it stipulates a list of reproductive rights of an individual, namely:
- Right to Individual decision-making, including voluntary choice family formation,
- Right of an individual to education and access, in order to make free and informed reproductive choices,
- Right to access quality reproductive healthcare services. Thus, the unique feature of this human right instrument which set it apart from others is that for the first time Reproductive Rights were clarified as constituting human right and endorsed internationally. Secondly, it gave an individual a choice and access in exercise of the right to procreate and reproduce for the realization of family. In pursuance of such right, an individual in furtherance of seeking optimum realization of his right to life has an option of resorting to artificial reproductive technology after the necessary medical treatment and approval in this regard. The Indian Constitution in Part III secures to all right to life, which is one of the widest amplitude and covers within its ambit a host of rights which make up or which constitute one’s right to life, including within itself the varied facets of right to life which will make an individual life worthwhile – Right to reproduce and form a family being one of such several rights comprising right to life.
MEANING OF ART TECHNIQUES-
ART is a general term referring to use of a range of techniques for manipulating oocytes and sperm. ART procedures involve surgically removing eggs from a woman’s ovaries, combining them with sperm in the laboratory, and returning them to the woman’s body or donating them to another woman to overcome infertility, ART encompasses drug treatments to stimulate ovulation, in vitro fertilization, intra-cytoplasmic sperm injection (ICSI), intrauterine insemination (IUI), artificial insemination and gamete intrafallopian transfer or GIFT, etc., to achieve pregnancy by artificial or partially artificial means. ART does not include treatments in which only sperm are handled (i.e., intrauterine—or artificial—insemination), or procedures in which a woman takes medicine only to stimulate egg production without the intention of having eggs retrieved. There is as yet no strict definition of the term.
REASONS FOR THE GROWTH OF ART TECHNOLOGY The chief reason for the growth of ART is the problem of proven medical infertility or inability to conceive due to limited biological capacity. Infertility is clinically accepted as the inability to conceive after twelvemonths of actively trying to conceive. Other medical reasons are as stated (illustrative, but not an exhaustive list):
- Sexual dysfunction – vaginismus, Anejaculation
- Genetic causes – genital tract anomalies
- Chromosomal causes – (including Y-deletions)
- Risk of conveying a genetic disease to a child · Endocrine/Hormonal causes – endometriosis, varicocele, etc.
- Infections – Toxic agents (chemotherapy, environmental toxins, several pharmaceuticals) Besides the medical reasons, common reasons for the growth of ART are change in life style, long work hours, high levels of stress, paucity of time, rise of divorces leading to single parents, etc. However, ART is not a matter of choice; it is usually looked at as an option of last resort. ART techniques are available at various hospitals, public or private, run for providing infertility treatment or clinics or sometimes also called as IVF Clinics.
COMMON ART TECHNIQUES ARTIFICIAL INSEMINATION
It is a technique by which semen deposition takes place into the vagina, cervix or uterus by certain instruments, and it includes: a) Artificial insemination Homologous (AIH) – Semen is normal but transmitting during normal intercourse is constrained; (b) Artificial insemination Donor (AID) – Semen is defective, and hence it needs to be taken from another donor. IN VITRO FERTILIZATION (IVF) This is fertilization outside of the body, also sometimes referred to as test tube babies. IVF is the most effective ART. It is used when a woman’s fallopian tubes are blocked or when a man produces too few sperm. Doctors treat the woman with a drug that causes the ovaries to produce multiple eggs. Once mature, the eggs are removed from the woman. They are put in a dish in the lab along with the man’s sperm for fertilization. After 3 to 5 days, healthy embryos are implanted in the woman’s uterus.
ZYGOTE INTRA-FALLOPIAN TRANSFER (ZIFT)
A Tubal Embryo Transfer, this is similar to IVF. Fertilization is again outside of the body and occurs in the laboratory. Then, the very young embryo is surgically placed in the Fallopian tube instead of the uterus. This procedure is no longer commonly performed because it has a lower success rate than IVF.
GAMETE INTRA-FALLOPIAN TRANSFER (GIFT)
This involves combining eggs and sperm in a lab, then transferring by injecting into the woman’s Fallopian tube using a laparoscope. So, fertilization occurs in the woman’s body and the embryo implants naturally. Again, this procedure too has a lower success rate than IVF.
DONOR EGG OR EMBRYO
This practice is resorted to when a lady is not medically able to conceive using her own eggs An egg donated by another woman is mixed with the sperm and the resulting embryo is implanted in the uterus of the former lady. This procedure also can be practiced with a donated embryo or sperm.
INTRA-CYTOPLASMIC SPERM INJECTION (ICSI)
This is used for those couples who face problems with the sperm. In ICSI, a single sperm is injected into a mature egg. Then the embryo is transferred to the uterus or Fallopian tube. It is usually used for older couples or for those with failed IVF attempts.
This is a child who is born to provide an organ or cell transplant to a sibling that is affected with a fatal disease, such as cancer. The savior sibling is conceived through in vitro fertilization. Fertilized zygotes are tested for genetic compatibility (human leukocyte antigen (HLA) typing), using pre-implantation genetic diagnosis (PGD), and only zygotes that are compatible with the existing child are implanted. Zygotes are also tested to make sure they are free of the original genetic disease.
SURROGACY AS ART TECHNIQUE
The word surrogacy has been derived from the Latin word surrogatus, meaning a ‘substitute,’ that is, a person appointed to act in place of another. Black’s Law Dictionary defines Surrogacy as, “surrogacy means the process of carrying and delivering a child for another person.” As per the draft Assisted Reproductive Technology ART (Regulation) Bill 2010, it means an arrangement in which a woman agrees to a pregnancy achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate. In simple terms, Surrogacy is an assisted reproductive technique in which a woman carries in her womb the baby of another woman.
FORMS OF SURROGACY
There are different forms of surrogacy practiced. Based on the genetic contribution and carrying of the fetus by the surrogate, they are the following:
GESTATIONAL SURROGACY A pregnancy in which one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child.
TRADITIONAL SURROGACY A pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, and she carries the fetus and gives birth to a child for another person. Two forms of surrogacy based on the payment of money as consideration to rendering of service as surrogate are the following:
ALTRUISTIC SURROGACY: It is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although, usually, all expenses related to the pregnancy and birth are paid by the intended parents, such as medical expenses, maternity clothing and other related expenses).
COMMERCIAL SURROGACY: It is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the costs involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where, due to excellent medical infrastructure, high international demand and ready availability of poor surrogates, it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms “wombs for rent,” “outsourced pregnancies” or “baby farms.”
SOME OF THE OTHER NOVEL REPRODUCTIVE TECHNIQUES PRE-IMPLANTATION GENETIC DIAGNOSIS (PGD): It is a technique used to identify genetic defects in embryos created through in vitro fertilization (IVF) before pregnancy. It refers specifically to when one or both genetic parents has a known genetic abnormality and testing is performed on an embryo to determine if it also carries a genetic abnormality.
EUGENICS: It refers to the practice of selective breeding. In positive eugenics, people with desired traits are encouraged to procreate. In negative eugenics, people with traits perceived as undesirable are discouraged or prevented from procreating or contributing their genes to a population. This was practiced by German Nazis. This is now considered violative of medical ethics.
DESIGNER BABIES: It refers to a baby whose genetic makeup has been artificially selected by genetic engineering combined with in vitro fertilization to ensure the presence or absence of particular genes or characteristics. One way to make a designer baby begins with an embryo created by in vitro fertilization (IVF). Genetic engineers modify the embryo’s DNA and then introduce it into a womb. The term is derived by comparison with ‘designer clothing.’ It implies the ultimate commodification of children. This is now considered unethical.
LEGAL AND ETHICAL ISSUES INVOLVED IN ART –
i.There are certain philosophical and moral objections manifest in the ART techniques as brought out by Kant’s famous dictum, “never use people as a means, but always treat them as an end.”
- ART techniques like surrogacy are seen as making women into a commodity, by letting her earn money by making use of her own reproductive organ; for this reason it is popularly called as ‘womb renting.’Commercial Surrogacy is seen as akin to prostitution, as in both cases women make use of their own reproductive organs to earn money.
iii. A few religious groups oppose ART technologies very strongly; for instance, Islam holds surrogacy as amounting to the offence of adultery, and Catholic Christians condemn this too. It amounts to playing God.
- ART techniques are criticized and condemned on the ground of challenging the established cultural traditions of society; ART techniques are seen as violating the public policy by fragmenting motherhood into two to three competing mothers, intervening between mother infant relationship.
v.It is viewed as exploitative for the woman both physically and psychologically, especially in case of commercial surrogacy; there is an economic exploitation for the poor woman to agree to be a surrogate for making money. This is especially so as it has an adverse affect on her hormonal and reproductive health.
vi.Some of the ART techniques, like commercial surrogacy, Savior sibling, Designer Baby, are against the rights of the child; it denies the child inherent right to life, right to identity, right to person, etc.
vii. Surrogacy, as one of the hot selling ART techniques in India, does not have a clearly defined enforceable law on the same, though held to be permissible in India.
CONCLUSION AND SUGGESTIONS –
With ART techniques on the rise, it is a remarkable growth in medical fraternity in India, making possible such state of the ART technologies at a relatively lesser cost in India. Yet, there are a number of issues that surfaced in the various cases mentioned above and wait to be resolved in this direction and clearly, there is a need for reconsideration on the social, ethical and legal issues involved in the ART technologies. Guidelines on biomedical research should be enacted and put into effect.
- Proposed ART Bill needs to be brought into force.
- The ART technology should cater to both individual needs and needs of collective interests of society.