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Legal and Ethical Dimensions of Artificial Reproduction and Related Rights

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Abstract

Recent years have illustrated how the reproductive realm is continuously drawing the attention of medical and legal experts worldwide. The availability of technological services to facilitate reproduction has led to serious concerns over the right to reproduce, which no longer is determined as a private/personal matter. The growing technological options do implicate fundamental questions about human dignity and social welfare. There has been an increased demand for determining (a) the rights of prisoners, unmarried and homosexuals to such services, (b) concerns over child's information and health needs, (c) claims for wrongful birth and wrongful life, (d) the role of donors and physicians, (e) posthumous reproduction etc. In addition, the role of national and international law has been emphasised for an efficient system of functioning and delivery. This paper is an attempt to explore the pressing claims to reproductive choices, coupled with a marked increase in demand for legislative intervention in India.
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Women ,7-17 (October- December 2012).ISSN 2229-6409
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Legal and Ethical Dimensions of
Artificial Reproduction and Related Rights
Dr. Deepa Kansra
Assistant Professor
The Indian Law Institute
New Delhi
Abstract
Recent years have illustrated how the reproductive realm
is continuously drawing the attention of medical and legal
experts worldwide. The availability of technological
services to facilitate reproduction has led to serious
concerns over the right to reproduce, which no longer is
determined as a private/personal matter. The growing
technological options do implicate fundamental questions
about human dignity and social welfare. There has been an
increased demand for determining (a) the rights of
prisoners, unmarried and homosexuals to such services, (b)
concerns over child’s information and health needs, (c)
claims for wrongful birth and wrongful life, (d) the role of
donors and physicians, (e) posthumous reproduction etc. In
addition, the role of national and international law has
been emphasised for an efficient system of functioning and
delivery. This paper is an attempt to explore the pressing
claims to reproductive choices, coupled with a marked
increase in demand for legislative intervention in India.
I. Introduction
Recent years have illustrated how the reproductive realm
is continuously drawing the attention of medical and legal
experts worldwide. The availability of various
technological services to facilitate reproduction has led
to serious concerns on the right to reproduce or give birth,
which no longer is determined as a private/personal matter.
With reproductive technologies gaining vogue, it becomes
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relevant to deliberate upon the responsibilities of the
legal fraternity towards the ever increasing claims to
reproduce with such technology.
In brief, the process of technological or artificial
reproduction (AR) commonly with the use of ‘Assisted
Reproductive Technologies’ (ART’s) employs various
techniques such as In-vitro Fertilisation and Embryo
Transfer (IVF- ET), based upon the assumption that it is a
legitimate extension of the natural methods of
reproduction. But is this assumption correct or is it just a
convenient means to avoid jurisprudential and policy
concerns, is no less than an enigma. At the root of any
law/decision/policy affecting artificial reproduction is a
well thought of constructed agenda argued on the grounds
of either instinct/nature on the one hand or social
welfare/public policy on the other. Most often, the notion
of reproductive autonomy and sexual privacy are most
commonly advanced by critiques of the
welfare principle
.
The principle stands for a system of regulation involving
various prohibitions as the only means to obviate problems
commonly associated with the process of AR. As we advance
with the discussion, it’s evident as to how artificial
reproduction inherently has implications for the common
good. It is an institutionalised manufacturing process that
undermines human life affecting matters of human
reproduction, parenthood and identity.
1
The process
fundamentally alters the way species reproduce,
materialising human life bringing it well within the public
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realm, subject to State control. The State has no
alternative but to be concerned with the manner in which
its members are created.
If promoting the interests (in
reproduction) for instance of one generation means
undermining the interests of later generation the State is
obliged to intervene in favour of the generation at risk.
2
The counter argument to the welfare principle is put forth
by the
rights based
analysts, which consider it an unjust
infringement of individual liberty for the state to
interfere with individual or group freedom artificially to
produce a child. To them, intrusion into the private choices
of individual’s seeking to have a family cannot be justified.
Stemming from the works of J.S. Mill and debates between
Hart and Devlin
3
, arguments are advanced that reproductive
activity has matters of sexual morality at its core. As a
natural consequence, such self regarding behaviour should
be
prima facie immune from restrictions deriving from
consideration of common good.
4
The problem is that
supervision of the process of reproduction as a commercial
process results in ceding of control of one’s fertility to an
expert, which does not happen to fertile people by
requiring proof of parental adequacy prior to conception.
The two arguments indicate that there is a possibility of
exploring and identifying the means to preserve individual
reproductive autonomy since it is valuable in fostering
human needs. The law with each day is a witness to new
issues emanating from claims of those involved in the
process of technological reproduction. As to whether the
law will always take a human rights approach when
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addressing the desire of individuals is still speculative or
uncertain. In this regard, due consideration must be placed
on the cultural values, ethical judgments, and the role of
the international community in promoting a concern for
the rights, as well as making the realm of reproduction safe
and ethically viable for the generations to come.
II. Artificial Reproduction: Practice and Opinions
Reproductive technologies were originally introduced to
treat infertility. Today they satisfy a variety of other
concerns. For instance, it is being offered to fertile
heterosexual’s couples as a means of avoiding the risk of
transmitting hereditary diseases to their offspring. With
increasing claims to utilise AR services, the process
inevitably raises moral and human right concerns.
5
.
Medical Practice
The process of Artificial Insemination for the purpose of
procreation can be practiced in three ways. Firstly, the
artificial insemination homologous or husband (hereinafter
AIH), wherein the semen is injected into the female body is
that of her husband. AIH is less controversial since the
semen that gives birth to a child in it belongs to the
woman’s legally wedded husband.
6
In the second type, the
sperm of a third party donor is introduced into a woman
on her expected ovulation date to help her conceive. This is
known as artificial insemination donor (hereinafter AID).
Although AIH and AID both offer an infertile couple
increased odds of conceiving a child, they produce
different results and different legal issues. The husband
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and wife who conceive using AIH are both the genetic
parents of the child, whereas under AID only the mother is
genetically related to the child.
7
The third kind is not
very popular, wherein the seed of the husband and that of a
third party is co-mingled, known as confused or
combination artificial insemination.
8
In IVF, mature ova are
surgically removed from a woman and placed in a
laboratory medium together with a male sperm. After
fertilization and several cell divisions, the early embryo
is implanted in the uterus of either the ovum donor or
another woman. The process is likely to raise several
issues on legal parentage of IVF born children, status
(whether person or property) of pre-embryos created
through IVF and frozen for future use. The option of
surrogacy also makes use of technological advancements
conducted on the basis of written document specifying
rights and obligations.
The first IVF baby was born in England in 1978. In 1986,
India’s first scientifically documented IVF baby was born
with research efforts of the Indian Council of Medical
Research (hereinafter ICMR). Research and promotion of
ART’s was undertaken in India as government initiative ,but
it soon fed into private health sector and has since then
flourished as a private enterprise. The only regulatory
framework set up is through the guidelines issued by the
ICMR. The public sector eventually discontinued the
programme, but the ART industry has expanded and clinics
offering ART procedures have mushroomed since then.
9
According to Sama
10
, the existence of social pressure to
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have children justified the rapid propagation of ART. The
information gathered from the providers suggested that
woman bear the disproportionate burden and social stigma
of infertility and childlessness, they would certainly be
willing to subject themselves to all forms of medical
interventions in order to bear a child.
11
Rights of Prisoners, Unmarried and Homosexuals
Experts suggest that an ethical analysis of issues on
reproductive autonomy does not lead to determined
conclusions; rather, it exposes considerations that require
or warrant attention, balance and prioritization.
12
On of
the several legal and moral issues is whether people with
impaired infertility who resort to ART should be as free as
those with usual fertility or those that can be exempted
for policy considerations. A human rights perspective
ideally does not permit any discrimination.
Countries worldwide have also witnessed a claim to
procreation by unmarried individuals, of single, lesbian
women and prisoners
13
to utilise AR to fulfil their desires
has attracted attention and academic debate utilising
artificial reproduction. Policy considerations indicate,
that in order to demonstrate an interest sufficiently
compelling to override unmarried person’s procreation
rights, or to justify disparate treatment based on marital
status, a state should have to allege differences between
married and unmarried persons- actual differences, not
distinctions based on stereotypical assumptions- and show
that allowing unmarried persons to parent would have
identifiable and significant negative results
14
. In the
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interest of public morals a state might contend that
expanding procreative alternatives for unmarried persons
might threaten the traditional family unit and discourage
individuals who want to have children from getting
married. However, law permits single persons to adopt and
raise children. And a variety of human interests and needs
might motivate an unmarried person to seek procreation
with the aid of technology.
15
.
There are also strong proposals for equal reproductive
freedom of gay and lesbian couples to access ART. Various
decisions of the Human Rights Committee set up under the
International Covenant on Civil and Political Rights (1966)
are indicative of an increase in claims for recognition of
gay men and lesbian women procreative and parental
rights
16
. Much of the case law revolves around the right to
found a family
17
, to protection given to family and family
life, and the rights to non-discrimination and equality.
The Committee’s jurisprudence on Article 23 is restricted
to marriage based families
18
.
In this regard, the European Commission of Human Rights in
E.B.
v.
France
19
recognized the full equality of gay and
lesbian couples in Europe. The court specifically held that
the States are not to discriminate on grounds of sexual
orientation in adoption proceedings. The decision has
strengthened the process towards the acceptance of same
sex families.
Adoption and ART
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The significance of ART is often established while referring
to the old age practice of adoption. As often indicated, it
was the very value of having children that culminated in
the social acceptance of adoption.
20
However, in terms of
the law adoption is governed on grounds of welfare and
state regulation and the practice of ART is indicative of an
approach favouring autonomy in medical decisions
regarding access to technology. Those offering to seek no
difference in adoption or ART signify that ‘ART’s help bring
us an understanding of parenting that comes very close to
the one adoption…in which one’s own child refers to a
relationship created by care and function, not biology or
genetics’
21
III. Legal Issues and State Policy
Several countries have made efforts to develop a
consistent legal framework to govern technological
conception.
22
Statutory standards or guidelines have been
premised on the view that the whole area will remain one of
public interest and also of controversy
23
. For such reasons
it becomes important to examine the interplay between
three main entities directly influencing best interest
outcomes for AR offspring. These entities are the
professionals, the parents and the State. The commonly
raised issues before the courts or those addressed by the
law are carefully summarised below.
Child’s Information and Health Needs
The international community has over the years
unanimously expressed concern over rights and security of
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children worldwide
24
. Questions are often raised as to
whether it is wrong to use reproductive technologies to
create children, if they bore a significant chance of
producing substantial harm by way of serious disease and
impairments. The harm indicated can be physical as well as
psychological. Very few countries, for instance Australia
maintain a record of statistics indicative of how children
born of IVF are two or three times more likely to suffer
serious diseases
25
. On the other hand, American studies have
shown no such likelihood of greater damage in cases
involving the process of AR
26
.
Psychological interests are inclusive of the need of each
individual to develop a sense of identity in combination
with other prerequisites for personal security and
stability
27
. The quest for identity is the process by which
offspring become aware of who they are or where they
belong. The issue that necessarily gets attached is,
whether revealing of donors identity to the child will be
contradictory to the secrecy attributed to the donation of
gametes and be detrimental to donor’s interests?
28
. As
carefully spelled out, the harvesting of gametes also
implicates genetic information because gametes are, by
definition, cells which hold half of the genetic information
needed for human procreation. Genetic information entails
an information privacy interest because to request a
family history or… the results of genetic tests is to ask
about personal information, that an individual may feel it
important to secure from access to others…Thus,
information privacy reflects in individual’s ability to
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control the manner in which others access and use the
information that is intertwined with his personhood
29
.
In AID since the identity of the donor is kept secret, the
biological father is out of the picture. It is argued that
technologically conceived children have informational
needs. Given the likelihood that that child could inherit
some of their parent’s psychological problems, AID
children have an interest in knowing the psychological
profile of their biological fathers. The ignorance and
inability to discover their biological roots may greatly
disturb the AID children and cause, as the psychologists
call it, the ‘genealogical bewilderment’
30
. The right to know
may be necessary in certain cases like, when the child
wants to marry and also in cases where there is a necessity
to detect genetic diseases. So whether the right to know
can be given to an AID child and if given, under what
circumstances, has to be determined by the legal system
31
.
However, only a system allowing linkage between donors
and recipients can serve the interests of artificially
conceived children in case of emergency or otherwise.
32
Apart from the concerns of the child, the medical
community also has reasons to set up a mechanism for
maintenance of records and information of donors.
33
However, the practice traditionally has always been to
maintain donor anonymity. This is done because if it were
otherwise, physicians and sperm banks will not be get
sufficient donors. In this matter, there is visible change
likely to gain momentum on the issue of donor anonymity.
The United Nations Convention on the Rights of the Child
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(1989) also includes the right to identity within its
provisions
34
. It is advocated, that legislative enactments
should travel beyond the traditional issues of parentage
and legitimacy. The doctors should be required to keep
detailed records of the donors and the recipient couples.
The information must necessarily include details of social
and medical history. For instance, detailed medical and
psychological history, race, nationality, education,
general physical appearance, family history, religion etc.
This is what is called non-identifying information, which
the children should have accessibility to. This system
allows access to donor’s genetic background, while still
maintaining the anonymity
35
.
In India, under the law governing marriage since persons
are not permitted to marry within certain degrees of
prohibited relationship
36
, the need for getting information
about the donor for medical and matrimonial reasons
arises. A legislation empowering a statutory body with the
maintenance of records of the donors of sperms and the
children conceived as a result of it is necessary. In this
regard the ICMR has furnished a Draft Bill, 2010 (mentioned
in the latter part of this paper) before the Government of
India for addressing the information needs of the parties in
including the children born. Although realizing such needs
as rights would be a process with difficulty involving
interests of donors, medical professionals, parents and the
state.
AID and Adultery
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Another frequently raised issue is whether the use of AID in
the absence of husband’s consent amounts to adultery. The
earliest relevant decision was of the Canadian Court in
Oxford v. Oxford
37
wherein the court held that it did amount
to adultery in the absence of consent of the husband.
38
What
followed were a series of cases on the issue before various
courts.
39
In
Maclennan v. Maclennan
,
40
the Court of Session
in Scotland held that AID did not lead to adultery. What
emerged from the various decisions was: (a) for adultery to
be committed there must be two parties physically present
and engaging in the sexual act at the same time. In order to
constitute the sexual act, there must be some union
involving some degree of penetration by the male organ.
The placing of male seed in the female ovum need not
necessarily result from the sexual act, if it does not, there
is no sexual intercourse.
41
.
In India, by virtue of Section 497 Indian Penal Code, AID
does not amount to adultery. The section requires sexual
intercourse as a necessary ingredient for the offence of
adultery. But AID, without consent of husband can be a
ground for divorce or judicial separation (ICMR Guidelines
as applicable in India).
Claims for Wrongful Birth and Wrongful Life
Several experiences have indicated that there is likelihood
of the process of AR going wrong by mixing up sperms of the
donor with that of someone else, transplant of gametes in
the wrong patient, disposal of embryo by mistake etc. The
issues of wrongful birth (wherein action is brought by the
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parents of the child for damage to themselves resulting
from birth) and wrongful life (wherein action is brought by
a child for damage to himself arising from the fact of
birth) have been brought before the English and American
courts time and again. As simply stated, ‘the problem of so
called wrongful life…is germane to the rather broader
concern that assisted reproduction has had a deleterious
impact on children as a class. Whether this has led to
children being’ made to order’, whether they have been
converted into commodities is an important question, and
no one concerned with the advancement of the statues of
the child or with children’s rights can ignore this issue’
42
The first English case to witness the problems of a
wrongful life claim was
Mc Kay
v
. Essex County Council
43
in
1982. The courts found no reason as yet to allow such claims
for various policy concerns. Similarly, the American courts
witnessed a series of joint actions by the child and the
parents.
44
The dilemma of the courts towards such claims is
an expression of how the problem of wrongful conception
and wrongful birth requires an evaluation not only of the
law, but also of exisiting morals in society and the field of
medicine. That perhaps is an explanation to the divergent
judicial responses
45
. As a clear step forward, the English
Parliament has provided the child with remedies under the
Congenital Disabilities (Civil Liability) Act 1976
46
. In India,
wrongful life claims have not yet been recognised. Though
it maybe possible for the parents who availed the services
of the physician to claim remedy against the doctor under
the Consumer Protection Act for deficiency of services
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after the Supreme Court ruling in
Indian Medical
Association
v.
V.P Shantha
47
.
The most commonly advanced argument for not disallowing
claims of wrongful life relies on the idea of existential
debt. It considers that human life is a good or a thing of
value and that a child does have a kind of debt to the
authors of his existence. In contrast, the wrongfulness of
certain means of reproduction is correct, the creation of
such a cause of action cannot be ruled out in principle. By
admitting the claim, the law only permits the claimant to
ask for compensation for the harm done.
IV. The Commodification Issue:
Role of Donors and Physicians
As perceived by many, life or birth can not be commodified.
And when something is made not commodified or is non-
saleable we place that thing beyond supply and demand
pricing, brokerage, advertising and marketing etc.
48
.
However the case of AR has potentially placed the realm of
reproduction into the market spaces
49
. As expressed,
‘commodification is inherent and implied in the very
artificiality of AR…In effect commodification takes out of
the private sphere, and puts into the public sphere, a large
part of the process of reproduction itself. By turning the
most intimate aspects of human activity into essentially
public, commercial processes supervised from beginning to
end by third parties, one thereby cedes dominion of one’s
character as parent. In AR, the act of becoming a parent is
founded upon the assumption that is the freezing, mass
storage experimentation upon, quality control and
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destruction of particular parent’s offspring is a legitimate
technological extension of natural methods of
reproduction’.
50
To reduce the chances of commodification, it is often
necessary for the law and for the society to take
cognizance of how to frame standards towards legal duties
vis-à-vis physician/patient relationship. The final
decision to utilise AR is always with the physician who
decides whether they should avail such treatment
51
. More
often value judgments are made and the physician is not
compelled to divulge his decisions in each case. It overtly
requires a social judgment to be made in what would
otherwise be assumed to be a medical decision
52
.
The
decision is upon the justification
advanced for undergoing
the treatment and on whether the person is qualified to
undergo such treatment.
In addition to the physicians, the donors also have duties
and rights as an important party to the entire process
53
.
The issue often raised is whether fee payments should be
provided on donation of gametes since it is likely to
commercialise the entire process. However, practice has
been in favour of payment of fees since on the absence of it
is likely to lead to non-availability of persons for
donating their gametes.
54
Are Embryo’s Persons
The most ethically charged claim made in terms of AR has
been in reference to the embryos that form part of the
process. Very often the courts are required to decide upon
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the claim to ownership or exclusive use of sperms by a
particular spouse. For instance, in the controversial case
of
Evans
v.
Amicus Healthcare Ltd
55
, the England and Wales
High Court was to decide upon the competing claims over
stored embryos created from the gametes of a couple, Ms
Evans and Mr Johnson
56
. The Human Fertilisation and
Embryology Act 1990 in England provides for destruction of
embryos if one party withdrew his/consent to use them. Ms
Evans challenged this provision as that being contrary to
the right to private and family life, the right to marry and
found a family under the European Convention of Human
Rights. Also, that the embryos were also entitled to the
right to life. Although her claim failed, the decision raised
numerous voices on the grounds of justice and equity. As
facts indicated, the embryo constituted Ms. Evans only
chance to have a child to whom she was biologically
related, and this desire would be permanently frustrated by
Mr Johnson’s choice to withdraw his consent. Balancing
such claims in the absence of clear provisions is difficult
and likely to lead to subjective conclusions
57
. The legal
community is to consider as to whether decisions to avoid
reproduction are more worthy of respect (as in the case of
Mr Johnson) than decisions to reproduce (in case of Ms
Evans). The underlying question is: are embryos persons? If
yes, then ‘the analogy is to children, and the legal
framework is one of custody and protection of embryo
rights’. On the other hand, if embryos are property, then
the analogy is to gametes, and the legal framework is one
of control, contract and protection of the progenitor’s
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rights
58
. In this regard, the natural rights theory
advocated by John Locke is widely consulted. The theory
suggest, that property rights are not the product of the
government, but arise naturally out of the individual’s
action, and men accepted the state authority for
protection of property rights, which entail ownership over
the self and over the product of one’s labour. Incidentally,
embryos are part of one’s own body and are property
59
.
Another theory worthy a mention is the ‘personality
theory’ taken from the works of Hegel
60
. It says, private
property is essential for the development of freedom and
…serves as a medium through which the individual becomes
a person. But the designation of something a personal
depends on out cultural and social commitments of a legal
regime on property and personhood.
Posthumous Reproduction
Posthumous births have also time and again been legally
and ethically determined. If recognised it allows a couple
to realise the need to have children on occasion of death of
his or her partner. The controversial issue of posthumous
insemination was considered in France in the case of
Mme
Parpalix
61
(1984) wherein a widow requested insemination
with her deceased husband’s sperm, which he had submitted
with a federal institution during his lifetime for future
use, but left no instructions as to what should have been
done with sperm on his death. The court ordered for
surrender of the sperm and the widow was inseminated with
it. The procedure however proved unsuccessful. On this
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matter, it has been advocated that posthumous
insemination should not be permitted because the right to
dispose off the sperm ends with the death of the sperm
donor. Since the right cannot be transferred to the sperm
bank or physician, the sperm should not be used after the
death of the donor’s death.
As evident from the above discussion, the realm of
artificial reproduction is facing a pool of concerns and
claims. With several countries responsive and vigilant, a
few are still failing to look into the repercussions of
inaction or disregard to the ethically charged issues
involved.
V. Regulatory Framework in India
In India, the Indian Council for Medical Research is the
apex authority regulating the practice of artificial
reproduction.
62
The National Guidelines for Accreditation,
Supervision and Regulation of ART clinics in India were
carefully drafted by the ICMR under the Ministry of Health
and Welfare, Government of India in 2005
63
. In the absence of
a suitable legislation, the conditions in India are far from
satisfactory.
There are endless stories of unethical practices occurring
in infertility clinics, the stealing of eggs and embryos,
illegal selling of fertility drugs, loss of medical records,
procedures undertaken by visiting foreign experts that are
banned in home country, sale of embryos on the internet
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etc
64
. A writ petition filed in the Kerala High Court
65
was
one of the many endeavours to seek for the imposition of
restrictions on the use of donor ova, donor sperm and donor
embryo in the ART for infertility treatment in the clinics.
According to the petitioners, the infertility clinics and
hospitals were adopting unethical and illegal practices
while treating infertility in their hospitals. In fact, they
were functioning without adhering to any statutory rules
66
.
They were using the donor sperms and ova without the
consent of the spouses. Since, no law incorporating the
guidelines had been enacted so far, these clinics had no
authority to collect, keep, store and deal with donor ova or
donor sperms. The court therein, issued notice to the
Union Government, Health Secretary, Indian Medical
Council, and Indian Council of Medical Research, that there
was an obligation on part of the government check such
illegal practices of these clinics.
In August 2009, the matter of ART’s was taken cognizance by
the Law Commission of India in its 228th Report on “Need for
Legislation to Regulate Assisted Reproductive Technology
Clinics as Well Rights and Obligations of Parties to a
Surrogacy”.
67
The Report is primarily discusses the
process of surrogacy and related aspects in India.
The ICMR also submitted a Draft Bill before the Ministry of
Health and Family Welfare, Government of India as the
Assisted Reproductive Technology (Regulation) Bill, 2010.
68
Under the ICMR guidelines that are applicable within India,
three categories of requirements are laid down for the
clinics: Minimum Physical Requirement of ART clinics,
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Essential Qualifications of ART Team and ART Procedures.
The standard criteria necessary for screening of patients
and selecting a suitable procedure with information to be
given for possible complications, are a salient feature of
these guidelines
69
. There is a serious concern advanced by
the ICMR that since there is no legislation, there should be
a ban on the sale or transfer of human embryos or gametes
in any form or in any way, to foreign practitioners as a
means of commercial exploitation.
The guidelines incorporate the following features: (a) The
rights of the child born through ART techniques. Firstly,
the child shall be presumed to be the legitimate child of
the couple, having been born in wedlock and with the
consent of both the spouses. Therefore, he shall have a
legal right to parental support, inheritance etc. Secondly,
children born through use of donor gametes, and their
adoptive parents shall have a right to available medical or
genetic information about the genetic parents that maybe
relevant to the child’s health. Thirdly, children born
through the use of donor gametes shall not have any right
whatsoever to know the identity (name, address, identity
etc) of the genetic parents. A child thus born will be
provided the rest of the information about the donor, as in
when desired, when he becomes an adult. No couple will
make a deliberate attempt to hide the information when
asked by him. (b) Single women are allowed to AIH, and the
child born would be legitimate. However, the guidelines
recommend that normally it should be performed on
married women, as a two parent family would be better in
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the interests of the child. (c) There is a provision for
treatment of the economically weaker sections of the
society. (d) The guidelines recommend initiatives in the
public sector in order to make modern techniques within
the reach of all sections of the society. The concerned
ministers must encourage and support local
pharmaceutical industries to start manufacture of the
necessary drugs.
In 1991, the Indian Society for Promoting Assisted
Reproduction was formulated with its headquarters at
Bombay. The Society has been set up with a detailed
objective of assisting couples in using ART’s, providing the
necessary information, to bring together medical personnel
or experts in the concerned field for a meaningful
discussion on the techniques, to create awareness on ART’s
etc.
70
In 2005, the First National Bioethics Conference (NBC 2005)
71
was held. The broad theme of the conference was 'Ethical
challenges in health care: Global context, Indian reality',
covering areas of clinical medicine, bioethics, medical and
social science research, community and public health,
women's rights, theology, biotechnology, law, governance,
and public policy. Based on its research, the IJME
identified a few areas factors affecting clinical practice
and outcomes. For instance, market forces, the cost of the
technologies widening the gap in access to health care
technology between socio-economically privileged and
disadvantaged individuals and communities etc. Indeed,
much has been done, but the troubles are far from being
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22
resolved. Apart from several research initiatives and a
frame of guidelines, there is a greater deal to come to
terms with the social, legal and human rights implications
of the techniques.
VI. International Law
The concern for human wellbeing has led the international
community to conduct research and deliberate wisely on
the common problems faced vis-à-vis the ART’s. In 2005 the
United Nations Educational, Social and Cultural
Organization (UNESCO) adopted the Universal Declaration
on Bio-Ethics and Human Rights
72
, with an aim to provide a
universal framework of principles and procedures to guide
states in formulation of laws, to safeguard the interests of
the present and the future generations. The most
significant provisions with respect to autonomy and
welfare of individuals are: (a) Articles 3 (respect for human
rights and the welfare of the individual should have
priority interest of science and society, (b) Article 5
(autonomy of persons to take decisions should be
respected), (c) Article 6 (medical intervention should be
done only with free and willing consent of the person
concerned), and (d) Article 9 (respect for privacy and
confidential information).
In Europe, an effort for the creation of ethical and
methodological regulations in the medical arena was
evident by the Convention of Human Rights and Bio Medicine
(1997). Research conducted has shown that in response to
globalization and related impact, the modern state became
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23
more reflexive to the society, its beliefs, values, religious
affiliation etc, that lie at the core of development of
bioethics and related norms. The Convention requires that
where the law allows research on embryos, it shall ensure
adequate protection of the embryo. Where such embryo
research is allowed nationally, the embryo research must
be limited to embryos that are not more than 14 days old.
73
.
In addition, there is also extensive research conducted
world over on the subject of AR and its impact on the social
patterns of a society. In Denmark new treatment or
diagnostic methods in connection with AR may not be
started until the Minister of Health approves these
activities based on ethical and professional health
services. The Danish Council of Ethics in 1995
74
outlined the
basic ethical considerations on procreation, with focus on
the community’s interests in protecting cultural values
relating to procreation. As per its findings, a minority in
the society favour strict regulation to protect human
beings from being detached from human reproduction and
thus they favour a ban on the techniques to AR. A majority
find assisted reproduction permissible. It concludes, that a
community centered approach may be difficult to adopt,
since procreation is closely connected to intimate issues
and individual autonomy.
The international community, independently and
collectively has certainly facilitated a process to
determine the controversial and significant issues on ART’s
in a pragmatic and cultural specific manner.
VII. Conclusion
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Mankind has benefited as well as suffered from medical
innovations. The growing technological options not only
provide treatment, but also implicate fundamental
questions about human dignity and social welfare. Human
dignity lies at the heart of the various international
resolutions, inviting great deliberations on what is means
or conveys in a socially and ethically complex situation.
For that reason itself, the law must be clear and strong to
balance conflicts and dilemmas.
In the developing countries, infertility “causes harsh,
poignant and unique difficulties: economic hardship, social
stigma and blame, social isolation and alienation, guilt,
fear, loss of social status, helplessness and, in some cases
violence”.
75
For such reasons ART’s must be a priority
agenda for the State. In India, to deal effectively with the
medical practice of artificial reproduction, an independent
and comprehensive legislation is needed. It should ideally
be a law that must reflect upon what the use of technology
does to the stability of family life, the population, as well
as prevailing social norms vis-à-vis reproduction. The
problems as discussed above make out a strong case to
carefully govern technological reproduction having
individual and social significance. Although AR has gained
universal acceptance, attempts at deliberating its social
or ethical viability continue to lead to disagreements. To
deal with them, a mere regulatory framework would not be a
feasible option. In the case of India, a mere regulatory
framework is inadequate to protect the interests involved
in the process. As expressed, argued, deliberated by many
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and on several occasions, the realm of reproduction related
deeply to the values of life and dignity sanctified within
the Constitution of India, must be set out as a priority
agenda by the State.
1
As a resultant of the process, the offspring born stands out as a class
aside from the rest of the society, possibly being deprived of the
fundamental information about parentage, ancestry, medical inheritance
etc. depending upon the prevailing laws on artificial reproduction. In
that case, it is argued that AR replacing natural processes makes
deception, secrecy and manipulation almost inevitable.
2
Jacqueline A. Laing and David S. Odeberg, “Artificial Reproduction, the
Welfare Principle, and the Common Good”, 13
Med L. Rev
328 (2005).
3
J.S Mill said- the society has no right to enforce its moral perceptions
where their violation would not cause objectively perceptible harm to
others. On the other hand, the Hart Devlin debate also revolves around the
harm principle as proposed by Mill, as to whether there are or not any
private areas of morality into which the law should not intrude. See
Hillary McCoubrey and Nigel d. White,
Textbook on Jurisprudence
, 53
Oxford University Press (1999).
4
Supra
note 2 at 329.
5
Warren Freedman,
Legal Issues in Biotechnology and Human Reproduction:
Artificial Conception and Modern Genetics
, Quorum Books 114 (1991).
6
Kusum, “Artificial Insemination and the Law”, 19:3
Journal of the Indian
Law Institute
283 (1977).
7
Marsha Garrison, “Law Making for Baby Making: An Interpretive Approach
to the Determination of Legal parentage” 113:835
Harvard Law Review
837
(2000).
8
Ateeque Khan, “Artificial Insemination and Surrogate Parenthood: An
Indian Socio-Legal Perspective”, 31:3
Journal of the Indian Law Institute
394 (1989).
9
Sama Team, “Assisted Reproductive Technologies in India: Implications
for Women”, 42 (23)
Economic and Politcal Weekly
2184 (2007).
10
Sama- Research Group for Women and Health is a Delhi based women’s
group working on health from a larger perspective that links women’s well
being with issues not only of health, but also livelihood, violence.
Ibid.
11
Supra
note 8 at 394.
12
Interestingly, most religions have opinionated views about the creation
of new family with the use ART’s. In the 1980’s the Catholic Church in the
United States condemned AID, as morally illicit and went so far as to
making both AID and AI criminal acts, for it (specifically in case of test
tube fertilization) reduces human beings to objects and degrades their
being, value and dignity. The church advocated that childbearing should
be limited to the conjugal act between husband and wife. In 1992, an
instruction was issued wherein the Church accepted AIH as perhaps less
worthy of condemnation than AID. But its stand on AID is somewhat the
same. Theorists claim that religious connotations may affect or have
affected decisions of the medical fraternity or many couples. See Norman
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M. Ford,
The Prenatal Person- Ethics from Conception to Birth
”,
Blackwell Publishing (2002).Also available at
http://books.google.com/books?id=A22ndDR0D6sC.
13
In case of
Dickson
v.
United Kingdom
, (2006) the European Court of Human
Rights established that where there is a desire for a child, there should
be an equal opportunity to realise procreation. The facts in brief were:
Kirk was serving life sentence in prison where he met Lorraine who was
also in prison, by a pen pal service network. After Lorraine was released,
they both got married and wanted to have a child together. They could not
conceive naturally, since Kirk was not permitted to visit home and
exercise his conjugal rights. Hence, they applied for AI services. The
Secretary of State refused their request on the basis of policy, wherein AI
could be permitted for prisoners only in exceptional cases, there was no
material to ensure the welfare of the child in the future and would be
confronted with prolonged absence of the father. Finally, after a long
legal process, the Grand Chamber rejected all such considerations on
three main grounds: there were no security issues or administrative or
financial burden on the State to permit access to AI, there was also a need
to look into the rehabilitative purpose of penal law and finally that
Article 8 of the European Convention on Human Rights came to the rescue
of the applicants. See Marleen Eijkholt, “The Right to Procreate is not
Aborted Dickson v. United Kingdom 16
Medical Law Review
284 (2008).
14
Annas, “Reproductive Technology and the Procreation Rights of the
Unmarried”, 98
Harvard Law Review
669 (1985).
15
In this regard, the American courts have implicitly recognised the right
to procreate by individuals, and such interests can be reconciled with
unmarried person’s procreation rights by means of legislation that grants
access to reproductive technology regardless of marital status and that
also mandates careful monitoring to prevent abuses
Ibid.
16
Aleardo Zanghellini, “To What Extent Does the ICCPR Support
Procreation and Parenting by Lesbians and Gay Men?” 4
Melbourne Journal
of International Law
(2008). Available at
http://www.austlii.edu.au/au/journals/MelbJIL/2008/4.html (Last Visited
4.11.08).
17
ICCPR Article 23(2): “The Right of men and women of marriageable age to
marry and to found a family shall be recognised.
18
In
Joslin
v
. New Zealand
, (UN Human Rights Committee, Communication
No 902/1999, UN Doc CCPR/C/75/D/902/1999 (30 July 2002)), the Committee
noted: “Use of the term ‘men and women’, rather than the general terms
used elsewhere in Part III of the Covenant, has been consistently and
uniformly understood as indicating that the treaty obligation of States
parties stemming from article 23, paragraph 2, of the Covenant is to
recognize as marriage only the union between a man and a woman wishing
to marry each other”.
19
(European Court of Human Rights January 22, 2008). Available at
http://cmiskp.echr.coe.int/tkpl
97/view.asp?item=l&portal=hbkm&action=html&highlight=43546/02&sessioni
d=41595631&skin=hudoc-en. Also see Elizabeth Burleson, “International
Human Rights Law, Co-Parent Adoption, and the Recognition of Gay and
Lesbian Families”, 55
Loyola Law Review
797 (2009).
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20
A few similarities and differences between adoption and ART’s can be
summarised; 1) Both create families: one provides children with parents,
whilst other provides adults with children. Adoption today may not be an
infertility service, but in the past it has been. Artificial reproduction is
an infertility service. 2) Both involve professional intervention….in
artificial reproduction skills involved maybe more specialised. The
medical profession has a greater role to play, in deciding on the
suitability of procedures etc, than the social work profession in cases of
adoption. 3) In the case of adoption, the child already exists. In the
latter, the child is created to satisfy the needs of the infertile and 4) in
adoption usually neither adoptive parent is biologically relayed to the
child. Whereas in AR, one of the social parent is also the genetic parent.
See Micheal D. Freeman,
The Moral Status of Children: Essays on the Rights
of the Child
, 192 Martinus Nijhoff Publishers (1997).
21
Susan Frelich Appleton, “Adoption in the Age of Reproductive
Technology”, University of Chicagl Legal Forum 393 (2004). Available at
http://ssrn.com/abstract=490642
22
While the relevance and need for ART may be readily established, some
challenge their use in developing nations. The criticism is levelled on
two grounds. First, given the overpopulation problem in many developing
countries, it is argued that overfertility, rather than infertility, should
be the focus of the family planning programmes. Second, treating
infertility through expensive ART cannot be justified in low resource
settings where other pressing needs must be given priority. However,
denial of infertility treatment and access to ART is an ill considered
population control policy. The most effective and significant step would
be to educate women in developing countries and interpretation to the
UDHR would establish a right to access infertility treatment through ART.
In India, the increasing demand for ART has resulted in mushrooming of
infertility clinics. In the absence of any legislation, there is no registry
of such clinics, with ever increase of malpractices. The only relief comes
in form of guidelines formulated by the Indian Council of Medical
Research, discussed in the latter part of the paper. See Chew S C
et al
,
“Assisted Reproductive Techniques- Promises and Problems”, 40
Singapore
Medical Journal
303 (1999).
23
In United Kingdom, in the early 1980’s AR was a field in which decision
making had taken place almost entirely in the private field. It was a
discourse between the individuals. However, with the advent of high-tech
procedures the state was invited to apply brakes and impose rules. In the
period 1979- 1988 was the phase of guideline writing followed by specific
legislations on the subject. See Ken R. Daniels and Darrel Hall, “The Best
Interests of the Child in Assisted Human Reproduction: The Interplay
between the State, Professionals, and Parents”, in
Children, Medicine and
the Law
, by Michael Freeman, 33 Ashgate Dartmouth (2005).
24
The United Nations Convention on the Rights of the Child (1989) states:
“in all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be
a primary consideration.”
25
Cynthia B. Cohen, “Give Me Children or I Shall Die” in
Children, Medicine
and the Law
, by Michael Freeman, 19 Ashgate Dartmouth (2005).
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26
In the absence of any strong evidence of damage, authors such as John
Robertson advocate the Interest in Existing Argument:
“a higher incidence
of birth defects in such offspring would not justify banning the technique
in order to protect the offspring, because without these techniques these
children would not have been born at all, a very unlikely supposition, the
defective children of such a union have not been harmed if they would not
have been born healthy”.
Ibid
.
27
Ken R. Daniels and Darrel Hall, “The Best Interests of the Child in
Assisted Human Reproduction: The Interplay between the State,
Professionals, and Parents”, in
Children, Medicine and the Law
, by Michael
Freeman, Ashgate Dartmouth 36 (2005).
28
The donor also has an interest in keeping his identity a secret for
avoidance of psychological disturbance in the future, affect on his family
life and relations etc.
29
Sunni Yuen, “An Information Privacy Approach to Regulating the
Middlemen in the Lucrative Gamete Market”, 29 U.Pa. J.Int’L. 527 (2007).
30
Hollace S.W. Swanson, “Donor Anonymity in Artificial Insemination: Is It
Still Necessary?” 27
Columbia Journal of Law and Social Problems
178
(1993).
31
K.R. Mythili, “Artificial Insemination- Legal Issues”, 39
Journal of the
Indian Law Institute
349 (1997).
32
In UK the Human Fertilisation and Embryology Act 1990 provides for
access to knowledge as regards origin by a child conceived by artificial
insemination from the authority. He is allowed to get information as to
whether the person whom he is going to marry is related.
33
First, if a problem with the sperm is discovered after its use, the
physician must know identity of the donor to identify other samples
donated by him and to stop dissemination of his sperm. Secondly, in cases
of AID, a child might have a birth defect or genetic disease. The physician
would want to disqualify the donor from the program. Thirdly, for
additional research on the affects of technological techniques, accurate
recording is a prerequisite.
Supra
note 30 at 182.
34
It is the first human rights instrument recognising the right to
identity. The concern is worth a mention: ‘Identity as what we know and
what we feel is an organizing framework for holding together our past and
our present and it provides some anticipated shape to our future life. Is
it morally correct to deny this well being to children?’ See
Supra
note 20
at 204.
35
Pino D’Orazio, “Half of the Family Tree: A Call for Access to a Full
Genetic History for Children Born by Artificial Insemination” 2
Journal of
Health & Biomedical Law
249 (2006).
36
Section 2(g) of Hindu Marriage Act, 1955.
37
58 O.L.R 251 (1921). For brief analysis of the case See Bartholomew,
“Legal Implications of Artificial Insemination” 21
Modern Law Review
239
(1958).
38
The opinion of the court is worth a mention in order to appreciate or
not, the case decisions that followed subsequently.
It goes,
“In my
judgement, the essence of the offence of adultery consists, not in the
moral turpitude of the act of sexual intercourse, but in the voluntary
surrender to another person of the reproductive powers or faculties of
the guilty person; and any submission of those powers to the service or
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enjoyment of any person other than the husband or the wife comes within
the definition of adultery”.
39
In
Strand v. Strand
(78 N.Y.S. 2d 390), the wife obtained custody of
children after separation with only visitation rights with father. She
later for various reasons opened the suit to defeat the rights of the
father that the child was conceived through AID and was illegitimate.
40
1958 S.L.T.12
41
Supra
note 6.
42
Supra
note 29 at 186.
43
(1982) 2 All E.R. 771.
44
In
Gleitman
v.
Cosgrove
(1967)22 A.L.R 3d 1411, the court admitted that
the parents claim stood in a somewhat different from the infant.
Nevertheless, policy factors articulated in the wrongful life cases cannot
be ignored because of the inter-relation in both areas of the same.
45
C. R Symmons, “Policy Factors in Actions for Wrongful Birth”, 50
Modern
Law Review
269 (1987).
46
Section 1A states that “a child may sue under this Act if the child is
born disabled and the disability results from an act or omission in the
course of selection, or the keeping or use outside the body, of the embryo,
or the gametes used t bring about creation of the embryo, for a wrongful
act against the person who was responsible for it”.
47
(1995) 6 SCALE 273.
48
Margaret Jane Radin, “Market Inalienability”, 100
Harvard Law Review
1849 (1987).
49
There has always been a debate over commodification or possible sale of
sperm, eggs and embryos, just like that of human organs, babies, sexual
services etc.
Ibid.
50
Supra
note 2.
51
Under s. 13(5) of the Human Fertilisation and Embryology Act 1990, the
clinics licensed to offer assisted reproduction treatment must, before
offering treatment services to a woman, take account- of the welfare of
any child who may be born as a result of the treatment (including the need
of that child for a father), and of any other child who may be affected by
the birth.
52
Gillian Douglas, “Assisted Reproduction and the Welfare of the Child”, 55
Current Legal problems
(1993-2).
53
A few of the duties are; to assist the physician in assessing whether he
is a suitable donor or not, by divulging information on his health
conditions, to sign a consent form to maintain secrecy of his identity to
the recipients, to obtain the consent of the spouse, if any is also a must
prior to such donation etc. His rights include: the assurance that no
responsibilities or liabilities will be bestowed upon him as a result of
donation of gamete.
54
Supra
note 31 at 353.
55
(2003) 4 All E.R 903. For a brief analysis of the case see Nicolette
Priaulx, “Rethinking Progenitive Conflict: Why Reproductive Autonomy
Matters”, 16
Medical Law Review
169 (2008).
56
As per the facts, Mr Johnson withdrew his consent and wrote to the
clinic for destruction of the embryos. Ms Evans, who had agreed to the
harvesting of her eggs and the creation of embryos with Mr Johnson
sperm, had done so in order to have a child in the future.
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57
The case of Ms. Evans has led to considerable demand for reform to the
interpretation of the 1990 Act in terms of the requirement of consent,
right to life of the embryo etc.
58
Jessica Berg, “Owning Persons: The Application of Property Theory to
Embryos and Fetuses”, 40
Wake Forest Law Review
159 (2005).
59
Ibid.
60
Gary H. Herbert, “A
Philosophical History of Rights
”, Transaction
Publishers 197 (2003).
61
1984 JCP II 20321. For brief analysis of the case see Dieter Geisen,
International Medicine Malpratice Law: A Comparitive Law Study of Civil
Liability Arising from Medical Care
, Martinus Nijhoff Publishers 638
(1988).
62
In
B.K. Parthasarthi
v.
Government of Andhra Pradesh
AIR 2000 A.P. 156,
the High Court of Andhra Pradesh upheld the right to reproductive
autonomy as a significant aspect of an individual’s right to privacy.
63
Available at http://icmr.nic.in/.
64
Nirupa Sen, “ICMR Spurs Public Debate on Infertility Clinics”, 80
Current
Science
(2002). Available at
http://www.iisc.ernet.in/currsci/nov252002/1185.pdf (Last visited 12.11.08).
65
Published in the Online Edition of The Hindu,
Notice Issued on Petition
to Regulate Infertility Clinics”
Available at
http://www.hindu.com/2004/06/23/stories/2004062308910400.htm (Last Visited
3.11.08).
64 Another case came up in 2003, wherein a woman contracted HIV from
artificial insemination. Investigations suggested, that a sperm bank is
required to test the blood of a donor and cryogenically preserve the
sperm for six months, after which it had to be tested again, and only then
could it be used for artificial insemination. And in this case perhaps the
procedure was not followed. See Sujoy Dhar, “India: HIV Case shows Need to
fix Rules on Assisted Reproduction”, Inter Press Service, June 5 (2003).
Also available at http://www.aegis.com/news/ips/2003/IP030606.html
67
The text of the report is available on
http://www.lawcommissionofindia.nic.in
(Last visited 17.5.2012).
68
The Draft Bill in its Preamble highlights that in the last “nearly 20
years have seen an exponential growth of infertility clinics that use
techniques requiring handling of spermatozoa or the oocyte outside the
body, or the use of a surrogate mother. As of today, anyone can open
infertility or assisted reproductive technology (ART) clinic; no
permission is required to do so. There has been, consequently a
mushrooming of such clinics around the country. In view of the above, in
public interest, it has become important to regulate the functioning of
such clinics to ensure that the services provided are ethical and that
the medical, social and legal rights of all those concerned are
protected”. The key features of the Bill are; (a) Chapter Two which
provides for the establishment of the National Advisory Board as the
central body for the formulation of rules for the regulation and control
of procedures and formalities regarding physical infrastructure of
clinics, ART procedures, selection of patients, research on embryos,
establishment of a national database in respect of infertility etc. (b)
Chapter III which provides a mandate on all reproductive technology
clinics to register with the Registration Authority created under this
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Act. Any act done in contravention of this section would be an offence.
(c) Chapter IV provides for the general duties of the ART clinics
regarding patient testing, obtaining of relevant information, disclosure
of donor information, confidentiality requirements etc. (d) Chapter VII
deals with rights and duties of the patients. It permits the use of ART by
single persons, as well as married and unmarried persons. The donors are
to relinquish all parental claims over the child. In cases of surrogacy,
it is to be given effect to by an agreement which shall be enforceable.
The child born through the ART procedures shall be presumed to be the
legitimate child of the couple, with both spouses having an equal right.
69
The other provisions deal with, basic requirements of a infertility
clinic, the essential qualifications of the ART team and the various
approved ART procedures, there is a procedure for patient selection, in
order to categorize them in specific groups and then refer them to
different levels of infertility care units for step wise investigation and
treatment. A few of the provisions deal with: registration of clinics,
confidentiality of information, counseling and consent requirements. In
regard to the storage and usage of embryos, the requirements are like
those under the Human Fertilization and Embryology Act, UK (1990).
Firstly, consent shall be taken from the couple for the use of their stored
embryos by other couples or for research. Research is permitted only in
the first 14 days. And the establishment of a National Database for Human
Infertility, since there is no documented available in our country that
would cover data on all aspects of infertility, and there is an urgent need
for the same.
70
Available at http://www.isarindia.net/
71
Available at http://www.cehat.org/nbc-ijme.html.
72
Available at unesdoc.unesco.org/images/0014/001461/146180E.pdf (last
visited 15.11.08).
73
Sule Toktas, “Internalization of Bioethics: The Search for Common
Norms of Bio-Ethics in the EU and the Council of Europe”, Available at
http://kosbed.kou.edu.tr/sayi12/toktas.pdf. (Last Visited 20.11.08)
74
Andrew Bainham,
The International Survey of Family Law: 1996
, Martin
Nijhoff Publishers (1998).
75
Effy Vayena, Patrick Rowe, David Griffin (Eds.), “Current Practices and
Controversies in Artificial Reproduction”, Report on a Meeting on
“Medical, Ethical and Social Aspects of Assisted Reproduction” at 19, held
at WHO Headquarters in Geneva, Switzerland 1721 September 2001. The
World Health Organization (2002). Available at
http://www.imamu.edu.sa/Scientific_selections/files/DocLib/report.pdf
(Last visited 15.5.2012).
ResearchGate has not been able to resolve any citations for this publication.
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In this article, the development of bioethics in one of the most scientifi-cally developed regions of the world -Europe-is discussed with reference to the enactments in the Council of Europe and the European Union. An international effort for the creation of ethical and methodological regulations in the medical arena has started in Europe. These efforts were primarily that of the Council of Europe with the Convention of Human Rights and Biomedicine and regulations by the European Union. This study examines the internationalization of bioethics and the national as-pects of norm building and decision-making in Europe that covers the political par-ties, the different stances taken in public debates, evolution of norms and regula-tions involved in the process and the policies. The questions of the transformation of classical understanding of the state in Europe and the evolution of bioethical norms are also addressed in this study. The article dwells upon the task of analyzing the attempts for common norms of bioethics in the EU and the Council of Europe in four parts. The first part discusses the formal aspects laying down the principles of bioethics in the domain of the Coun-cil of Europe and mainly focuses the Convention on Human Rights and Biomedicine. The second part moves the discussion to the European Union and generally outlines the attempts by the EU regarding bioethics and the rules of conduct upon the layer initiated by the Council of Europe. The third part draws out the future prospects in genetics and biotechnology and makes an assessment of the general trends. The fourth part makes a conclusion with a summary of the main points which were dis-cussed through out the article.
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The historical development of the concept of rights has followed the philosophical history of our understanding of nature and has shared its fate. The ancient teleological idea of nature experienced a slow demise, giving way eventually to the modern nonteleological idea of nature found in seventeenthcentury mathematical physics. Nature lost its status as the domain to which one could refer for fixed patterns of moral and natural excellence and became, instead, a domain of nonmoral and mechanical intelligibility. The idea of right suffered the same slow demise as ancient nature, beginning as the ancient idea of what objectively is right, splitting itself up eventually, in the early modern era, into (1) subjective right, the natural, non-moral rights--or powers--of the individual subject, and (2) what remained of objective right itself, now conceived as whatever the laws require or, more abstractly, whatever moral obligation or the commands of God demand of one. Morality for seventeenth century philosophers was knowable only as legality. Of course, modern subjective right was, at the outset at least, also objective, in the sense that it was part of the nature of things and not merely the arbitrary offspring of human thinking and feeling about things. For Thomas Hobbes, subjective (individual) rights retained their unsociable objectivity by being an expression of the natural conatus of individuals, an extension of the natural desire for survival, "Jbund even in the emb~o. ''~ Rights, according to Hobbes, are not moral or political fictions. Found "even in the embryo," they are scientifically verifiable truths pertaining to all people everywhere. Most importantly, there is nothing moral about them. Good people and bad people alike possess rights. Hobbesian natural rights, conceived as the liberty of persons otherwise governed by principles of rational self-interest, but unbound by moral or divine law, drove Hobbesian individuals unavoidably into a war of each against all. The two centuries of political philosophy following Hobbes were occupied, in large part, with locating ways by which natural rights might naturally mediate themselves and produce peace. For Hobbes, the natural mediation of natural right could be achieved only when and where individuals could be made to recognize the reasonableness (the self-interested character) of political submission to an absolute sovereign authority. The frightening prospect of violent death for those who remain in the unmediated liberty of the natural condition would transform consistently self-interested individuals into para
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Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos' legal status is lacking. This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, as the latter is strongest in those cases where procreation has not yet occurred - e.g., sterilization and contraception. Finally, this article is the first to provide a substantive evaluation of the application of property theories. The approach is sure to challenge commentators on all sides of the debate. For those who argue that embryos and fetuses are persons, the strong property interests will likely be unpalatable. Similarly, the implications of the combined framework for limiting those property rights as the entity develops will likely be unacceptable to advocates of extensive procreative choice during pregnancy. Nevertheless, this framework provides a more accurate understanding of the legal issues, and therefore may facilitate the eventual resolution of the protracted battle regarding the legal status of embryos and fetuses.
  • Margaret Jane Radin
Margaret Jane Radin, "Market Inalienability", 100 Harvard Law Review 1849 (1987).
Evans has led to considerable demand for reform to the interpretation of the 1990 Act in terms of the requirement of consent
  • The Case
  • Ms
The case of Ms. Evans has led to considerable demand for reform to the interpretation of the 1990 Act in terms of the requirement of consent, right to life of the embryo etc.
Government of Andhra Pradesh AIR 2000 A.P. 156, the High Court of Andhra Pradesh upheld the right to reproductive autonomy as a significant aspect of an individual's right to privacy
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  • Parthasarthi
In B.K. Parthasarthi v. Government of Andhra Pradesh AIR 2000 A.P. 156, the High Court of Andhra Pradesh upheld the right to reproductive autonomy as a significant aspect of an individual's right to privacy. 63 Available at http://icmr.nic.in/.
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Nirupa Sen, "ICMR Spurs Public Debate on Infertility Clinics", 80 Current Science (2002). Available at http://www.iisc.ernet.in/currsci/nov252002/1185.pdf (Last visited 12.11.08).
The International Survey of Family Law
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Andrew Bainham, The International Survey of Family Law: 1996, Martin Nijhoff Publishers (1998).
Current Practices and Controversies in Artificial Reproduction
Effy Vayena, Patrick Rowe, David Griffin (Eds.), "Current Practices and Controversies in Artificial Reproduction", Report on a Meeting on "Medical, Ethical and Social Aspects of Assisted Reproduction" at 19, held at WHO Headquarters in Geneva, Switzerland 17-21 September 2001. The World Health Organization (2002).