In a bizarre turn of events, a family court in Nanded, Maharashtra allowed a plea made by a 35-year-old woman to have a second child with her estranged husband through in-vitro fertilisation (IVF).
The decision has caused a stir among lawyers, doctors and activists alike. FIT spoke with some of them to understand the implications of such a ruling and how it challenges conventional notions of reproductive rights in the day and age of artificially assisted pregnancies.
Case Background
The couple is currently undergoing a matrimonial conflict. The husband had sought a divorce in 2017 on grounds of cruelty under Section 13 (1) (i-a) of the Hindu Marriage Act. The wife had filed a petition to claim maintenance for herself and her now seven-year-old son. She had also initiated a criminal case against the husband.
Now, the petitioner wife has pleaded for conception either through restitution of marriage or through IVF. According to a Bar & Bench article:
“The wife undertook to withdraw the criminal case if the estranged husband agrees to the Assisted Reproductive Technologies (ART) procedure.”
She also assured that she would take care of the maintenance of the proposed child herself.
The Basis of Judgement
The order was passed by Judge Swati Chauhan of the Nanded Family Court last week. It reads:
“...right to reproduce is a very intricate feminine right emanating from woman’s basic human right. Not allowing a fertile woman to procreate is like compelling her to sterilise. To curb or to curtail reproductive right may have subtle and devastating demographic outcome.”
The plea, made through Advocate Shivraj Patil, claimed that the woman’s ‘fertility and strength to bear and rear a child will decline with age.’
The lawyer of the husband insisted that the man did not want to procreate in any way.
The court held that it would not force the husband to consummate the marriage. However, the IVF option put forth by the wife could be considered.
“The petitioner’s request to the respondent to donate his sperms can be said to be a legitimate eugenic choice of petitioner. It is not a complex situation like surrogacy where three or four people are involved as the persons involved are wedded husband and wife.”
Notably, the court maintained that the husband’s consent was essential too. But a refusal without ‘sufficient cause’ could entail ‘legal and logical consequences’.
A Matter of Consent
FIT approached experts in the field of both law and medicine — and they all expressed discontent.
Mihira Sood is a Supreme Court lawyer specializing in women's rights.
I think it’s an atrocious judgement and it needs to be struck down and appealed. The right to reproduce is equal to both men and women. You are literally doing forced sperm donation. Saying that he has every right to say ‘no’, but may face legal consequences if he does — makes no sense. Those two sentences are literally contradictory. It’s absurd that the court is mandating IVF.Mihira Sood
Dr Puneet Bedi is a gynecologist and obstetrician at Apollo Hospitals, New Delhi.
What about the husband’s right? If I don’t want to restore my conjugal relations with a woman, I also don’t wish to give her my sperm. Moreover, IVF is a complicated procedure that is sold as a substitute or ‘short-cut’ to reproduction. But it is not. The risks and harms associated with IVF are numerous.Dr Puneet Bedi
Deepika Narayan Bhardwaj is a documentary filmmaker and a social activist who specializes in men’s rights.
The court is being so lopsided and biased in its approach. It is forgetting that men’s rights also stand on the same pedestal as women’s. The reproductive rights of a man and a woman are both human rights. Nobody can be forced. And if he refuses, he is blackmailed with legal consequences? I am just appalled.Deepika Narayan Bhardwaj
Dr Nozer Sheriar is former secretary general of the Federation of Obstetric & Gynaecological Societies of India (FOGSI).
Reproductive choices and rights apply to a man too. The woman can have her own child. She has every right to do it. Nobody can take that away. But to put pressure on an estranged partner and say that he has to have the baby — that is just unfair.Dr Nozer Sheriar
Beyond Consent
Besides consent, there are many other problems that follow.
Sood explains, “It’s not taken into account that the couple is estranged. That they have very strained relations and even legal proceedings against each other. This is not the basis for any kind of family unit.”
Moreover, this completely reinforces all kinds of gender stereotypes by saying things like ‘the right to reproduce is an inherent part of femininity’.Mihira Sood
Assistive Reproductive Technologies (ART) & Reproductive Rights
While technological advances in reproduction have come as a blessing for many, they have also opened up newer avenues of debates and discussion over reproductive rights.
Even in this case, the court had been clear in its stance on not forcing the man to consummate the marriage. But when it came to IVF, the court saw no problem with the sperm donation.
Dr Bedi warns against such an oversimplification of a process like IVF. “It is an extremely invasive procedure. The long-term effect it can have on the baby’s and the woman’s health is uncalculated. But it is severe, and can even be life-threatening — considering the high doses of hormones that are given to the woman.”
Whatever is scientifically possible isn’t always right. For example, it is possible to clone human beings. But you don’t just go ahead and do it, because there are many things that need to be considered. Here, the woman wants to have a baby. For that, she just needs a sperm inserted inside her vagina, which is possible through many other ways. But other options aren’t told to you, because they are much cheaper.Dr Puneet Bedi
The complications don’t end here. Frozen embryos, surrogacy and procedures such as IVF have raised many questions over ownership and entitlement rights of all parties involved.
- In 1984, the frozen embryo debate arose after the death of a couple and the status of their frozen embryo — whether it should be considered a living being entitled to the parent’s inheritance, or whether it is given to another couple and rightfully claimed as theirs.
- After the death of a couple in China in 2013, the parents of both partners fought to claim the fertilized embryos as their own. A baby boy was born four years later through surrogacy.
- In 2015, American actress Sofia Vergara was sued by her former fiance Nick Loeb in his bid to give birth to the embryos (now with a surrogate) that they had frozen in a clinic during their relationship. In Louisiana, the state concerned, embryos were recognized as ‘judicial persons’ with rights of their own.
According to Dr Sherier, assisted reproduction has made possible a whole new world. But it is still evolving. Certain things are clear, but many others are not. There is no single rule that can suggest that the embryo belongs to a particular person.
Today, all kinds of combinations are theoretically possible. Birth parents, adopted parents, surrogates etc. Not everything can be black and white. Guidelines and policy may help us figure the grey areas out in the future.Dr Nozer Sheriar
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