Pub. Info. –Family Balancing, ART & Sex Selective Surrogacy – National, International, Legal Perspectives, May 9, 2016 indiamedicaltimes http://www.indiamedicaltimes.com/2016/05/09/opinion-family-balancing-art-sex-selective-surrogacy-national-international-legal-perspectives/
Legalization of ART, Surrogacy in India-
India has no law to regulate Assisted Reproductive technologies including In Vitro Fertilization (IVF), Surrogacy. However the practice of ART gained momentum with the first ever formulation of National Guidelines for Accreditation, Supervision and Regulation of ART Clinics by Indian Council of Medical Research (ICMR) under the aegis of Ministry of Health & family welfare Government of India in the year 2005 providing for conduct of ART including IVF, surrogacy in India [1]. This guidelines though nor enforceable as law but this guidelines paved way for In vitro fertilization, gestational, commercial surrogacy among other ART techniques. The Supreme Court of India in the landmark case of Baby Manaji Yamanda vs. Union of India [2], formally legalized surrogacy in commercial form in the year 2008 The supreme court directed enactment of a statutory law on the same. This led to formulation draft legislation titled as Assisted Reproductive Technologies (Regulation) Bill 2008 [3]. The ART Bill for the first time defined the ART including IVF, surrogacy among other techniques. This ART Bill is awaiting enactment. This bill is so far revised thrice, in the year 2010 [4] then in the year 2013, [5] subsequently in the year 2014 [6] respectively. Presently, there is ART Bill 2014 awaiting enactment, yet there is no effective, binding statutory law on the same.
Proliferation & medical malpractices by ART or Fertility Clinics –
Taking advantage of such unregulated, unmonitored regime on ART, surrogacy a large number of ART or fertility clinics have come up. A rough estimates states that there are around 3000 IVF clinics in the country but this has not received official approval [7]. There is no official records on the number, sex of the surrogate born annually in India same as evinced through RTI petitions with concerned government bodies, Ministries commissions at national and regional level [8]. There is no mandatory biding on the clinics to declare if a baby is born through surrogacy or not, in their records.[9] This lack of data on in itself is a major void in controlling use of ART techniques for sex selection or sex selective surrogacy.
These ART or infertility clinics are functioning or operating with neither registration, nor licensing of equipment, there is dearth of lacking qualified medical experts along with no regulatory compliances. Most of these clinics are neither registered with the directorate of medical services under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, neither these follow the ICMR Guidelines nor the draft ART Bill nor the existing PCPNDT Act [10].
In the absence of statutory legislation, these ART or fertility clinics indulge in host of illicit acts or medical malpractices one of such is family balancing sex or selective surrogacy or in other words child of the desired sex using ART techniques or sex selective surrogacy as pre genetic diagnosis (PGD), foetal reduction in the name of family balancing for commercially vested interests [11]. These clinics cause widespread advertisements offering sperm sorting on the internet for the same. In a case before the Manchester, Salford Magistrates’ Court involving an Indian doctor had been issued legal notice for alleged “conspiracy to procure poison for inducing sex selective abortion of the unborn baby under UK Offences Against the Person Act 1861 [12].
Conceptualization of Family Balancing as sex selection –
Family Balancing is popular and socially conducive terminology for gender selection done for the purposes of achieving a more balanced representation of both genders in a family [13]. In another words family balancing involves conduct of sex selection or detection tests accordingly sex selective abortion which may also include aborting female fetuses, embryos for nonmedical reasons at the instance of couple as a facet of personal procreative choice of couples with regard to family formation [14]. The UK government regulatory authority on ART namely the Human Fertilization and Embryology Authority (HFEA), 2002, surrogacy uses the term, “family balancers” to refer to “such couples who already have children predominantly of one sex and would like a child of the other sex to complement their existing family” [15].
These issues of family balancing hold particular significance in India considering gender imbalance, skewed sex ratio, as a result of alarmingly high rate or incidence of female foeticide [16], the female foeticide has caused demographic crisis in few states namely Punjab, Haryana, Himachal Pradesh, Gujarat and Maharashtra others[17].
Sex Selection via ART –
The Assisted reproductive technology provides for sex selection at two strategic stages firstly before the implantation of embryo through sperm sorting and after implantation through PGD. Clinics conduct sperm sorting to select sperm based on the whether they carry male or female chromosomes and use the one carrying the preferential chromosomes. Secondly, after implantation PGD is used with IVF to identify medical defects, disease including detection of genetic, sex-linked disorders by screening for carriers of X-linked, Y linked genetic diseases [18], for instance namely Duchenne muscular dystrophy, Hemophilia, is a X linked genetic disease indicating the female sex child where as Y linked genetic disease includes infertility, reproductive disability indicating male child accordingly the sex of the foetus is detected and sex selective surrogacy may be facilitated.
Many demographers, social workers, NGO in their research reports have clearly indicated the role of ART in sex selection, National Institute of Public Cooperation and Child Development, in a Socio-cultural Study stated that Assisted Reproductive Technologies (ARTs) permits the choice to intending couples to “choose” the sex of a child at the time of conception through in vitro fertilization (IVF) [19]. This is supported by UN Women, UNFPA in their report titled ‘Implementation of the PCPNDT Act in India: Perspectives and Challenges’ April 2010, this report identifies three new medically advanced techniques namely vitro fertilization (IVF), Ericsson‘s technique of semen separation, pre-implantation genetic diagnosis (PIGD) as contemporary trend of easy, effective means of sex determination and selection used by gynecologist [20].
National Laws Ban on Sex selection –PCPNDT Act, ART Bill
The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) (PC & PNDT Act) 1994 amended as the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 2003 [21] includes within itself the emerging pre conception sex selection techniques used by infertility clinics under its regulatory purview. PC & PNDT Act gives state’s health department the power to conduct inspections of fertility and assisted reproductive technology centers and close them down in case of absence of registration certificates. In consonance with these, in Voluntary Health Association of Punjab Vs. Union of India & Others [22] , the supreme court has brought all the infertility clinics under the ambit of PCPNDT and the court directed the infertility Clinics, using pre-conception and pre-natal diagnostic techniques to maintain all records and exhibit the same to the concerned District Authorities. Similarly, the ART Bill carries forward the mandate of PCPNDT Act.
ART Bill 2014 provisions –
The ART Bill 2014 provides for prohibition of advertisement relating to pre-natal determination of sex and punishment for contravention [23 ] Section 63 (1) ART Bill 2014 and the Bill provides for punishment for conducting pre-natal
diagnostic techniques in consonance with the Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, [24] but untill the Bill becomes the statutory law these provision remains only in paper.
Gaps in ART Bill & Scope for Sex Selection, Family balancing –
The ART Bill is riddled with inadequacies gaps. The ART Bill provides for conduct of Pre Implantation Genetic Diagnosis (PGD) [25] along with foetal reduction to reduce the number of fetuses in the case of multiple pregnancies after counseling with the clients or the couples [26]. These provisions may be misused for abortion of the female foetus after screening, detection through PGD for female sex of the child. Another issue which faces omission in the ART Bill is the specification regarding any limitation on the number of times a couple may use this technology to have a child, coupled with this there is no background assessment of couple and their family the number and sex of their existing children as done in the case of adoption, in the absence of these clear specification couples may seek sex selective surrogacy on the ground of family balancing.
National Cases on family balancing, ART techniques, surrogacy:
There has been a host of cases at national level on the issue of sex selection, surrogacy under the garb of family balancing. Some of these may be reiterated here,
In Malpani Infertility Clinic Pvt vs Appropriate Authority, PNDT Act[27], the Mumbai HC reinforced the direction issued by the supreme court [ direction] in the PIL Public Interest Petition bearing Writ Petition (Civil) No. 301 of 2001 prohibited, penalized seeking strict implementation of the PCPNDT Act against a leading infertility clinic of Mumbai for cancellation and suspension of registration of the infertility clinic for five years in public interest, for carrying prohibited activity of “sex determination test” under the guise of “family balancing. The court rejected the permissibility of family balancing and emphasized on strict implementation of the PCPNDT Act for promote greater social interest.
Amy Antoinette Mcgregor &Anr Vs Directorate of Family Welfare [28] wherein an Australian couple sought direction from the Delhi High court to issue them a no-objection certificate for commissioning sex selective surrogacy for reasons of family balancing using the pre-natal diagnostic techniques to “balance their family”. The court rejected the same. The Delhi High Court held that “the rules of the Pre-Conception and Pre-Natal Diagnostic Techniques Act (Prohibition of Sex Selection) (PCPNDT) Act, 1994, strictly prohibits child sex determination, this law equally applies to both Indian and foreign nationals seeking to conceive a child in the country in order prevent misuse of pre-natal diagnosis for sex determination. The Delhi HC held that any relaxation would be detrimental of the government’s endeavor and would reverse the trend of the declining female child sex ratio.
In Varsha Laxman Deshpande vs The Municipal Commissioner[29]wherein a women right NGO based in Mumbai filed a complaint at the magistrate court against a popular hindi film actor for conducting sex selection test using the genetic testing techniques (PGD) on the surrogate foetus to ensure birth of male surrogate child thus violation of the PCPNDT Act, pursuant to this Mumbai HC issued a legal notice against the actor for the same and the court directed the civic body for necessary investigation in the same.
International cases on family balancing ART Techniques, Surrogacy –
It is important to consider the comparative foreign legal, judicial developments on family balancing using ART techniques, surrogacy. The UK Human Fertilization and Embryology (HEFA) Act states that sex selection for all nonmedical reasons is illegal [30]. In Masterton case [31] an intending couple who had already four sons and sought to use PGD to have sex selection for family balancing reason in order to have a daughter for fulfilling a complete family this was refused by UK HFEA. Another UK case, Olsson v. Sweden [32] held sex selection for medical reasons is legal , permissible but sex selection for non-medical reasons is contentious and disproportionate and banned or prohibited.
In Canada under the Canada Assisted Human Reproduction Act, use of PGD for sex selection for the purpose of detection of particular gender is both prohibited and punishable as a criminal act with a penalty of imprisonment up to ten years in jail and fine amounting to $500,000 [33].
Few of the European nations namely, Spain under Human assisted reproduction techniques Act [34] prohibit sex selection for non-medical or family balancing reasons and permits sex selection only for medical reasons. In a Spanish case, ‘Sentencia de Mataró’ case [35], the intending mother who had already existing sons sought to commission sex selective surrogacy using the ART Techniques including PGD or such others to choose the sex of the baby but the court denied the same and the court held sex selection is only allowed for medical reasons.
Contest & Counterbalancing of Personal Rights Vs Public interest , policy –
The practice, permissibility of family balancing under ART technology has brought forth issues of legitimacy, restraint or regulation of reproductive or procreative choices, reproductive autonomy of couples. The concerned stakeholders including couples espouse for family balancing as a facet of right to privacy, choice of family formation emanating from basic human right to privacy, procreation or family formation as enshrined under the international human right conventions namely Universal declaration of human rights (UDHR) [36], International convention on civil political rights (ICCPR)[37], European convention on human rights (ECHR)[38], International Conference on Population and Development ICPD[39].
But this is pitted against larger public interest which entails preservation, balance in sex ratio and right to life among other legal issues. The right to reproductive freedom is not an absolute right including decision making related to pre decide, pre determine the sex of the unborn child [40]. This right is subject to competing larger public or social interest, public policy promoting or protecting sex ratio or gender balance, ensuring gender balance or sex ratio and controlling female feticide [41] protection and preservation of right to life. Thus restrictions on the reproductive freedom may be justified.
There are significant judicial pronouncements on these contesting issues of imposing restriction on reproductive freedom of couples, these are briefly reiterated here, in a leading European case, S.H. And Others v Austria [42], the European Court of human right (ECHR) held that the right of a couple to make use of medically assisted procreation for the purpose of procreation, family formation is not an absolute right but rather subject to intervention by public authority for reasons related to national security, public safety for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
On similar lines, The California Court opined that “the biological parents have no such authority to take decision on the sex of the child and that the parents should put the child’s best interest ahead of their own fears and concerns” [43]. Thus it the court takes away from the parents right to pre determine or alter sex of the unborn child for non-medical reasons.
Ending notes –
In the light of these misuse and unethical practice of this technology, it is suggested that the early enactment of ART Bill is the need of hour to control and curb these practices. With the Bill coming into effect, the government appointed regulatory authorities will conduct the necessary supervision monitoring on the conduct of the clinic. The ART Clinics must be directed to maintain records on the number, sex of the surrogate child must be appropriately maintained and periodically furnished to the concerned authorities. Though a progressive initiative of ART registry is initiated by the Indian Council of Medical Research (ICMR) in the year 2013 which has set up the National Registry of ART Clinics and Banks in India (NRACBI) in India for creating an central database on the number of ART clinics in the country [44].
Keeping in mind, the Indian position on sex ratio, menace of female foeticide, it may be rightfully said that sex selection through any other nomenclature means or techniques must be strictly, prohibited penalized as there ought to be counter balancing of the individual rights towards larger social, legal objectives, social welfare. The relevant provisions of the ART Bill on sex selection in consonance with the provisions of PC PNDT Act must be mandatorily or strictly enforced to eliminate any scope for family balancing or any other form of sex selection in disguise.
References –
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[2] (2008) 13 S.C.C. 518.
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[23] Section 63 (1) ART Bill 2014.
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[25]Section 50(1) ART Bill 2014.
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[28] W.P.(C)6332/2013.
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