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LEGAL PERCEPTION ON ARTIFICIAL INSEMINATION IN HUMAN BEINGS WITH REFERENCE TO INDIA
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LEGAL
PERCEPTION ON ARTIFICIAL INSEMINATION IN HUMAN BEINGS WITH REFERENCE TO INDIA
AUTHORED BY
- HARIPRIYA BHARADWAJ
INTRODUCTION
The concept of artificial
insemination (hereinafter, referred to as AI) in human beings dates back to the
1770’s but in India this is an emerging concept. The awareness about this
concept is increasing in India in the recent times as the assisted reproductive
technology cases are seen on the rise. In this article the history of
artificial insemination followed by its current status in the society is
discussed in detail. Firstly, the reason why this concept is becoming popular
recently is primarily the rise in infertility among both men and women while
the gradual acceptance of various forms of marriage as opposed to the previous
decades (in India) is also a major contributing factor for rise in AI cases. To
support this statement with statistics- according to the World Health Organization,
1 out of 6 people globally face infertility and the scenario in India is as
disturbing as this where the Doctors of All India Institute of Medical Sciences
(AIIMS) have reported that over 12–18 million couples in India are diagnosed
with infertility every year. With the sperm count of a normal Indian
adult male reducing to 20 million/ml from over 60 million/ml three decades ago.
This is the paramount cause for removal of social stigma associated with
artificial insemination in humans while the other formal developments are
enumerated in the following pages of the article.
HISTORY
The concept of AI in humans with
regard to official history dates back to the 1770’s but unofficial history claims the first case to be as
early as the 15th century where the first attempts to artificially
inseminate a woman, were done by Henry IV (1425-1474), King
of Castile, nicknamed the Impotent. In 1455, he married
Princess Juana and after six years of marriage, she gave birth to a daughter,
Joanna. It was assumed by historians that Henry was impotent. The possibility
of artificial insemination was launched. Later on, it was claimed that the
princess was not the daughter of the king. In India, the concept of artificial
insemination found its existence in the ancient society as well- there existed
a practice called Niyog Pratha followed by young widows who were childless
after the death of their husbands but sought motherhood, by infertile women,
and women whose husbands were impotent. The first ever documented case of AI in
humans was done by John Hunter in London in the 1770’s who was called “the
founder of scientific surgery”. In India the first baby born through assisted
reproductive technology (here, in vitro fertilisation) was in the year 1978 in
Kolkata.
ARTIFICIAL
INSEMINATION
A brief overview on what artificial
insemination actually is in the medical sense would be helpful in the further
understanding of the article.
The process by which the semen is deposited
in vagina, cervical canal or the uterus, by artificial means, for the purpose
of bringing pregnancy in a healthy woman, who is unable to conceive a child
through sexual intercourse with her
husband is artificial insemination in its widest sense.
Whether AI is a part of assisted
reproductive technology (hereinafter, referred to as ART)?
Before answering this question, it is
important to gain knowledge about the formal developments in the field of AI in
India.
?
The
Union health ministry and the Indian Society of Assisted Reproduction (ISAR)
have set up a registry National ART Registry of India (NARI).
?
The
formulation of the Assisted Reproductive Technology Act, 2021[1](hereinafter,
referred to as the said legislation), subsequently the Assisted Reproductive
Technology Rules,2022.
These are the 2 breakthrough
developments in the field of ART particularly in respect to AI.
This is because prior to the
enactment of this legislation there was no formal body or law governing the
same, it was merely governed by certain ICMR (Indian Council for Medical Research)
guidelines which led to failure to solve legal disputes consequently arising.
The formal developments are as a
result of wide acceptance for this technology- as per the Centre for Disease
Control and Prevention about 82% of the clinical pregnancies resulting from ART
led to live births.[2]
Now, to answer the question of
whether AI is a part of ART, the definition of the latter as under the said
legislation- Section 2 of the Assisted Reproductive Technology (REGULATION)
ACT, 2021 defines “assisted reproductive technology”,
?
All
techniques which include an attempt to obtain a pregnancy by handling the sperm
or the oocyte outside the human body and
?
Intravenously
transferring the gamete or the embryo into the reproductive system of a woman
Thus, it is clear from the definition
that artificial insemination is a part of Assisted Reproductive Technology.
There are various types of ART such
as Artificial insemination, In Vitro Fertilization(IVF), Surrogacy, Gamete
Intra Fallopian Transfer(GIFT) among which the focus of this article is only on
Artificial insemination.
Types of AI
There are 2 major types of Artificial
Insemination-
1. Artificial
Insemination Homologous(AIH)
2. Artificial
Insemination Donor/ Heterologous Artificial Insemination (AID)
The former deals with artificial
insemination by the sperm of the husband in case of heterosexual couples while
the latter is artificial insemination by the sperm of a donor from registered
sperm banks. This is the type of AI under which various legal disputes occur.
LEGAL
ISSUES IN AI
Legitimacy of the child: According to Section 31 of the said
legislation[3] ,the
child born out of ART shall be deemed to be the biological child of the
commissioning couple.
Thus, it will have all the rights of
a legitimate child born without the use of any Assisted Reproductive Technology.
Question of Adultery: No such question will arise in the
case of a commissioning couple as under Section 497 of the Indian Penal Code,
sexual intercourse must be present to constitute adultery.
These are the primary areas where the
legal problems arise.
The next two sub-topics deal with the
most important and relevant provisions of the Assisted Reproductive Technology
Act, 2021 with regard to Artificial Insemination classified as under as ELIGIBILITY
FOR AI and DONOR ELIGIBILITY.
ELIGIBILITY
FOR AI-
This is an area which is entirely
based on the said legislation i.e., Assisted Reproductive Technology Act, 2021-
It consists of the inherent
requirements for opting for AI:
? Section 2(u), and Section21 (g)(i)- Woman above the age of 21yrs and
below the age of 50 yrs.-
? Section 21 (g)(ii)- Man above the age 21 yrs. and below
the age of 55 yrs.-
? Section 21(a) mandates the clinic/bank to ensure
the eligibility
of the commissioning couple
of the commissioning couple
? Section 2(e) states that the commissioning couple
should be infertile married couple.
? Section 2(j) states the inability to conceive
after 1 year of unprotected coitus or
other proven medical condition preventing the couple from conception
other proven medical condition preventing the couple from conception
DONOR
ELIGIBILITY-
?
Section 21
describes general duties of assisted reproductive technology clinics and bank
to be fulfilled
?
Section 22
mandates the written informed consent
?
Section 23
mandates the accuracy of the records maintained
?
Section 27
states the eligibility criteria of the donor which are
- The male must be between 21 years of age and 55 years of
age [Section 27 (2)(a)]
- The female must be between 23 years of age and 35 years of
age.-[Section 27(2)(b)]
- The male must be between 21 years of age and 55 years of
age [Section 27 (2)(a)]
- The female must be between 23 years of age and 35 years of
age.-[Section 27(2)(b)]
?
Section 27(2)(c)-The donor should be examined for diseases mentioned in Rule 19 Assisted
Reproductive Technology Rules,2022
?
Section 27(3)-A
bank shall not supply the sperm or oocyte of a single donor to more than one
commissioning couple-
?
Section 29-The
sale transfer or use of gametes directly or indirectly, inside or outside India
is prohibited.
OFFENCES
AND PENALTIES-
?
According
to this act, all related offences and penalties are detailed under Section 33
of the said legislation:
33. Offences and penalties — (1) Any medical
geneticist, gynaecologist, registered medical practitioner or any person shall
not—
a)
abandon,
disown or exploit or cause to be abandoned, disowned or exploited in any form
the child or children born through ART;
b)
sell
human embryos or gametes, run an agency, a racket or an organisation for
selling, purchasing or trading in human embryos or gametes;
c)
import
or help in getting imported in whatsoever manner, the human embryos or human
gametes;
d)
exploit
the commissioning couple, woman or the gamete donor in any form;
e)
transfer
a human embryo into a male person or an animal;
f)
sell
a human embryo or gamete for the purpose of research; or
g)
use
any intermediates to obtain gamete donors or purchase gamete donors.
(2) Whoever contravenes the
provisions of clauses (a) to (g) of sub-section (1), shall be punishable with a
fine of not less than five lakh rupees which may extend to ten lakh rupees for
the first contravention and for any subsequent contravention, it shall be
punishable with an imprisonment for a term not less than three years which may
extend to eight years and with fine not less than ten lakh rupees which may
extend to twenty lakh rupees.
?
The
punishment for the offences committed under this act are additionally mentioned
under Section 34 of the said legislation:
34. Punishment for contravention of
provisions of the said Act or rules for which no specific punishment has been provided.
— Whoever contravenes any of the provisions of this Act or any rules made
thereunder, for which no penalty has been provided in this Act shall be
punishable as per sub-section (2) of section 33.
REPORTED
CASES OF ARTIFICIAL INSEMINATION
In this field of AI, most of the
cases reported have occurred in foreign countries mainly because this concept
identifies itself with some social stigma in the Indian society.
Foreign Cases-
The cases reported are highly in the
nature of the fertility fraud while carrying out the process of artificial
insemination.
A number of patients were to be artificially inseminated with
sperm provided by screened, anonymous donors arranged by Jacobson.
For preserving the anonymity of the donors, Jacobson identified them in
records using code numbers; so that only he would know their true identities.
Seven instances were identified in which Jacobson was the biological
father of the patients' children, which included one patient who was supposed
to be inseminated with her husband’s sperm.
DNA tests linked Jacobson to a minimum of 15 children, and allegedly
around 75 children to be fathered by Jacobson by impregnating patients with his
own sperm.
2. Case of Dr.Phillip M.Miligram[5]
In September 2020, a San Diego woman sued Dr. Phillip M. Milgram for
having used his own sperm three decades earlier to inseminate her, instead of an
anonymous donor sperm.
The deception was discovered by her adult son who found that Milgram was
his biological father from a home DNA test kit.
Indian
Cases-
1. Reported
on June 23 ,2019
In
a case where a 35-year-old woman requested for her estranged husband’s sperm
for artificial insemination the family court of Maharashtra upheld the request
and stated that even when the commissioning couple are separated the wife can
opt for AI with the husband’s sperm as reproductive right is closely and directly related to women but
this does not undermine the necessity to obtain the husband’s consent for the
procedure.[6]
2. Reported
on June 22,2023
On October 15, 2008 an Intra-Cytoplasmic Sperm Injection (ICSI)
procedure was performed to transfer the embryo into Ms. Tandon’s womb.
When the pregnancy was confirmed after a month, Ms. Tandon delivered
twin girls.
The blood group of one of the twins was found to be AB positive. The
blood group of Ms. Tandon was B positive while that of her husband was O
negative. This raised suspicion about the paternity.
The court observed that the negligence of doctors led to the genetic
link between the parents and their children being severed which caused the parental
confusion for the children.[7]
CONCLUSION
Thus, the concept of artificial
insemination in human beings in India is a developing one i.e., with enormous
scope with respect to legal formulations. In India, there is only one governing
legislation for artificial insemination and surrogacy put together which is the
Assisted Reproductive Technology (Regulation) Act, 2021read along with the Assisted
Reproductive Technology Rules,2022. This covers the registration of the sperm
banks, fertility clinics eligible to carry out this process along with the legal
and medical requirements for the AI process. It is observed that the consent of
the commissioning couple for use of donor sperm plays the most essential role
in this concept and the majority of the white-collar crimes are committed
violating this requirement of the law. Therefore, in a nutshell artificial
insemination as a part of assisted reproductive technology is seen to be the
most advanced scientific advancement as it caters to the need of the changing
society by providing options for single unmarried men and women to embrace
parenthood while remaining less expensive and less invasive as compared to
other forms of Assisted Reproductive Technology.
REFERENCES
ARTICLES
1. Artificial
insemination history: hurdles and milestones-W. Ombelet and J.
Van Robays- 2015; 7(2): 137–143.
2. United
States v. Jacobson-United
States. District Court. Eastern District of Virginia-1992:785:563-9.
NEWSPAPER
PUBLICATIONS
1.
https://timesofindia.indiatimes.com/
2.
https://www.thehindu.com/news/cities/Delhi/consumer-panel-slaps-15-crore-fine-on-delhi-hospital-for-sperm-mix-up-during-ivf-procedure/article66997801.ece
3.
https://www.nbcsandiego.com/
WEBLIOGRAPHY
1. https://www.ncbi.nlm.nih.gov/pmc/articles
2. https://www.sciencedirect.com/
3. https://registry.artsurrogacy.gov.in/
4. https://main.icmr.nic.in/sites/default/files/art/Doc_6.pdf
[1] With effect from, 25th January,
2022, vide notification No. S.O. 291(E), dated 20th January, 2022, see Gazette
of India, Extraordinary, Part II, sec. 3(ii)
[2]
https://www.cdc.gov/art/reports/2020/summary.html
[3] Section31-Rights of child born through assisted
reproductive technology. — (1) The child born through assisted reproductive
technology shall be deemed to be a biological child of the commissioning couple
and the said child shall be entitled to all the rights and privileges available
to a natural child only from the commissioning couple under any law for the
time being in force.
(2)
A donor shall relinquish all parental rights over the child or children which
may be born from his or her gamete.
[4] United States v. Jacobson,United
States. District Court. Eastern District of Virginia
[5] https://www.nbcsandiego.com/
[6]
https://timesofindia.indiatimes.com/
Article Information
LEGAL PERCEPTION ON ARTIFICIAL INSEMINATION IN HUMAN BEINGS WITH REFERENCE TO INDIA
Authors: HARIPRIYA BHARADWAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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