Dr. Sanjay Makwana, a pioneer in the field of IVF in India, delivered a guest lecture on assisted reproduction and surrogacy at National Law University, Jodhpur today. He spoke on the technicalities of the procedure giving a practitioner’s perspective pertaining to ethical, moral and legal issues.
Dr. Makwana delved into the practicalities of the donor-donee relationship in protection of anonymity of donor. In India, the concerns of the donee couple seeking a donor for assisted reproduction or the commissioning couple in case of surrogacy stretches to physical characteristics, ethnicity, religion and caste of the donor/surrogate mother. The medical practitioners try their best to match the couple’s parameters with the choice of donors and surrogate mothers available. Since awareness of egg donation and sperm donation is as yet low in India, there are very few instances where the donor is from the family itself.
Parents opting for ‘designer babies’ to fashion their baby for cosmetic purposes is modern technology’s manifestation of an old-fashioned parental impulse . While the very idea of such artificial selection in order to engineer the physical attributes of the baby is in itself highly disturbing, the trend of couples in India including religion and caste among their parameters and the general acceptance of the same is a mammoth social debate waiting to burst upon the scientific, social and legal community in India.
Especially so when Section 34(7) of the Assisted Reproductive Techniques (Regulation) Bill & Rules – 2008 specifies :
“Individuals or couples may obtain the service of a surrogate through a semen bank, or advertise to seek surrogacy provided that no such advertisement shall contain any details relating to the caste, ethnic identity or descent of any of the parties involved in such surrogacy. No assisted reproductive technology clinic shall advertise to seek surrogacy for its clients.”
There also exists the issue of homosexual couples approaching clinics for surrogacy arrangements. Medical practitioners can deny providing couples with assistance when they believe, after counseling; the couple is not ready for reasons whatsoever. There is no uniform code of practice governing such discretion. A practitioner in Rajasthan may refuse to do what a practitioner in Karnataka might – all solely on the basis of individual ethics, morals and social outlook. Therefore, while many clinics offer services to homosexual couples, many refuse to provide services not only to homosexual couples but also to couples in live-in relationships.
As per the ART Bill, a gay couple cannot have a child. A gay person can do so. Marital status of a gay individual therefore is irrelevant unless the couple plans to adopt the child, in which case the relevant laws would apply.
Somewhere amidst this web of caste-specific babies and the institution of marriage being a qualifying factor for assisted reproduction, are deeper issues. Firstly, that the lack of adequate regulation leaves the medical practitioners to play God by giving them the unbridled discretion to refuse assistance. Secondly, the proposed Assisted Reproductive Techniques (Regulation) Bill & Rules – 2008 which is expected to regulate these issues is rivet with many inconsistencies, fallacies and in many instances has been criticized as a purely legal endeavor that has given practicality a backseat.
The need of the hour is a comprehensive regulation that instead of restricting the doctor by placing obstacle courses in his path provides a mechanism that facilitates the procedure. For in this battle between the law maker and the medical practitioner, the heads that roll are that of the infertile couple.
