Table of Contents
ASSISTED REPRODUCTIVE TECHNOLOGIES AND REPRODUCTIVE RIGHTS OF WOMEN
Anjali Bhaskar[1]*
ABSTRACT
Developments in assisted reproductive technologies, a profit-oriented global market, has made the medical intervention in female bodies acceptable as a response to infertility. While voluntary treatments offer solutions, involuntary or forced infertility treatment is threatening to women’s right to control their reproduction and increases the risk of abuse that a woman has to bear. This paper is primarily concerned with the importance of women’s reproductive autonomy and their freedom of choice, while taking into consideration the legal protection granted to their rights under International and Indian Law. The author explores the various international human rights instruments, which form the basis of reproductive rights and analyses in particular, the legal conditions of the Indian surrogacy market, which has been primarily shaped by the decisions of the Supreme Court of India to assess the protection granted to surrogates. Further, the paper critically studies the laws governing the usage of assisted reproductive technologies in India and the lack of legal infrastructure which provides for the enforcement of reproductive rights of the women.
INTRODUCTION
Assisted reproductive technologies (ARTs) have emerged as a very sought-after solution for the problem of infertility among couples and individuals who desire to have their own biological children. Development of ARTs which include procedures and arrangements like surrogacy, different types of artificial insemination, in-vitro fertilization (IVF), gamete intrafallopian transfer (GIFT), intracytoplasmic sperm injection (ICSI), embryo freezing, etc.[2] have induced a change in the notion that, reproduction is a strictly biological process. The non-western societies, unlike the western societies, don’t believe that reproduction is a self-chosen goal of a couple or an individual, rather they perceive reproduction as a social obligation to their families and the community.[3] In countries like India, where girls are considered to be a burden on their families, the birth of a boy child within the first year of marriage is considered to be a very proud moment for the parents. This often leads to the misuse of available reproductive technologies to increase the possibility of a boy child being born into the family. For this reason, prenatal sex determination of the foetus is illegal in India. For the empowerment of women in countries like India, women have to be made aware of their rights as individuals and should also be given the authority to make decisions for themselves.
ARTs have often been criticised for harnessing patriarchal values which equate ‘womanhood’ to ‘motherhood’ and pronatalist standards which use infertility as an excuse to lower down the moral worth of a woman in society. Medicalised interventions in female bodies in a patriarchal society not only restricts women’s role to ‘child bearers’ but also are force them to bear the burden of these medical procedures.[4]3 In a pronatalist society, where a person’s moral and social status is linked to reproduction,[5]4 consequences of infertility or childlessness are severe, which include unstable marriages, polygamy, divorce, and ostracism of the women who are usually blamed for infertility.[6]5 The new reproductive technologies offer a solution to the biological condition of infertility by avoiding the problem and providing an alternate solution, but these technologies do not provide any solution to the social problem of infertility caused by these ideologies.
REPRODUCTIVE RIGHTS IN THE ARENA OF INTERNATIONAL LAW
Article 16 of Universal Declaration of Human Rights (UDHR) adopted by the UN General Assembly in 1948 states that, “family is the natural and fundamental group unit of society”.[7]6 The UDHR emphasised on the right to marry and found a family but, didn’t mention reproductive rights at all. Reproductive rights first became a subject of concern at the International Human Rights Conference held in Teheran, in 1968, where it was stated that “parents have the basic human rights to decide freely and responsibly on the number and spacing of their children and right to adequate education and information in this respect”.[8]7 According to Robert H. Blank, reproductive rights include- “(1) a right not to have children; (2) a right to have children; and (3) a right to have children of a particular quality and quantity”.[9]8 When reproductive rights are stated in their negative aspect, reasonable boundaries can be drawn but when these rights are stated in their positive aspect, then an infertile couple has claims for access to these technologies.[10]9
J.A. Roberston’s idea of ‘procreative liberty’ gives the right to either have children or abstain from having children to every individual.[11] Therefore, it can’t be considered to be morally wrong to be voluntarily childless and nobody can interfere with the personal decision of the couple or the individual.[12] The denial of procreative choice to an individual is the denial of fundamental dignity[13] and any instruction or imposition of reproductive technologies on the people affects the scope of their procreative liberty.[14] Thus, when we put restrictions on the homosexual couples, old-aged couples and unmarried individuals from accessing these technologies, we take away their procreative freedom and promote the opinion of “appropriate” family, consisting of married heterosexual couples.[15]
The shift from promoting the public good to promoting private interests can be noticed as we embrace the new trends in privatisation and globalisation.[16] When infertility treatments are given more commercial value than medical value, its availability is limited to the private sector and accessibility and affordability is restricted to the upper and middle-class families.[17] An argument against privatising infertility treatments in overpopulated countries is “distributive justice”, why should only the infertile poor remain childless?[18] Therefore, if the right of childless couples to avail infertility treatment is considered to be a part of their reproductive right, privatisation of fertility treatment amounts to the violation of the human rights of the poor.
Gender, caste, class, religion, and sexuality are few factors which determine your role in the ART market.[19] The consumers usually belong to the upper class, while the surrogates belong to the lower class. The gametes of upper caste donors with socially ‘desirable’ characteristics are most demanded to ensure that the child(ren) born through this procedure is socially accepted. The women are the ones who undergo the treatment and are determined to endure the medical abuse to fulfil their needs and the society’s desires.[20] Thus, it is imperative to analyse the effect of ARTs on procreative rights of women and to ensure that persons who have access to ARTs are receiving protected and efficient treatments. These rights have to be viewed in specific contexts of women’s lives as there can have different meanings attached to it, depending on the situation of the women concerned.[21] It is also important to recognise the reproductive rights as human rights to guarantee women’s autonomy over their bodies. By enabling women to control their reproductive rights and make informed decisions will ensure that the women’s basic rights are not violated a
nd there is an improvement in their reproductive health.[22] A woman’s status in society not only depends upon her ability to procreate but also on her ability to exercise her rights as an independent adult, to participate in societal matters, earn a living, to own and control property and to be liberated from any form of prejudice.[23] In India, where infertility is not just a personal problem but also a social problem it is important to ensure women are able to freely exercise their rights as individuals.
nd there is an improvement in their reproductive health.[22] A woman’s status in society not only depends upon her ability to procreate but also on her ability to exercise her rights as an independent adult, to participate in societal matters, earn a living, to own and control property and to be liberated from any form of prejudice.[23] In India, where infertility is not just a personal problem but also a social problem it is important to ensure women are able to freely exercise their rights as individuals.
Article 25 of the UDHR states that “mothers and children are entitled to special care and assistance”.[24] This accentuates the duty of the state to provide for basic healthcare for women who are successfully able to give birth through ARTs and the baby(ies) born through the use of these medical procedures. India’s public healthcare system does not provide adequate preventive, corrective and counselling services, which are primary requirements to ensure that women’s right to adequate healthcare is not compromised.[25] Studies show that infertility management has not been not been an area of priority in public policies and health care programs in India.[26] According to the World Health Organisation, most of the developing countries spend less than 5% of their gross national product on healthcare.[27]The inability to pay for the primary care of women and other essential requirements is not due to lack of resources, but due to the mismanagement of available assets.[28]
LAWS GOVERNING USAGE OF ARTs IN INDIA
In 2005, the Ministry of Health and Family Welfare (MOHFW) and the Indian Council of Medical Research (ICMR) released the ‘National Guidelines on Accreditation, Supervision and Regulation of existing ART clinics in India’[29]28, but since these guidelines had no legal binding, they were not executed properly, resulting in the absence of any form of strict rules governing the infertility clinics and the usage of these technologies.[30]29 These guidelines have ensured preferable conditions for couples, looking for surrogacy as the genetic parents of the child are considered to be the legal parents and their names are mentioned on the birth certificate.[31]30 But, these guidelines have often been criticised for not emphasising on a number of key issues like rights of the surrogate, the minimum wage for surrogate, contract specifications and voluntary nature of the contract.[32]31
In 2008, the first draft of Assisted Reproductive Technologies (Regulation) Bill and Rules was made public by the MOHFW and the ICMR.[33]32 This bill was praised to be one the “friendliest laws on surrogacy in the world” as the surrogacy agreements will be enforceable in the court of law after the proposed bill will be passed.[34] But, it was also criticised to promote private interests rather than regulating them and came out as an inadequate measure to protect the interests and ensure the well-being of the women and children.[35] The ART (Regulation) Bill and Rules 2008, was further revised to overcome the drawbacks of the first draft and address the issues which became a matter of concern later. But, the government has so far been unsuccessful in a passing a well drafted Act covering usage of ARTs and surrogacy in the country.
The ART (Regulation) Bill, 2014[36] [hereafter referred to as “Bill 2014”] is significant as it introduces some major changes in this field like placing a ban on foreign nationals, homosexual couples and single individuals from availing
surrogacy in India. The Bill 2014 establishes a National Board at the central level and State Boards at state levels, which will focus on developing new policies in the area of ARTs and will also accredit and regulate the services of ART clinics and banks. Furthermore, the Bill 2014 establishes National Registry which will operate as the central database and will we be up-to-date with the functioning of the registered ART clinics and banks. The registry will also devise a curriculum for training programmes in the related areas, to ensure that the consumers are guided well and the ART procedures carried on by the trained staff are safe and efficient. The data collected by the registry will be used while framing policies, guidelines and for research purposes. Bill 2014 also confers some duties on the ART clinics and banks which include, counselling the patients regarding the implications and chances of the success of the ART procedures, informing the patients about the advantages, disadvantages, side effects, risks and explaining to them the choices of treatment and alternative solutions like adoption available to them. If followed staunchly this will assist the women in becoming aware of their reproductive rights and will also aid the women in exercising these rights and making informed decisions. Moreover, the Bill 2014 holds the clinics and banks responsible to ensure that the couple willing to undergo the treatment is eligible and medically fit to avoid any (un)foreseeable complications.
surrogacy in India. The Bill 2014 establishes a National Board at the central level and State Boards at state levels, which will focus on developing new policies in the area of ARTs and will also accredit and regulate the services of ART clinics and banks. Furthermore, the Bill 2014 establishes National Registry which will operate as the central database and will we be up-to-date with the functioning of the registered ART clinics and banks. The registry will also devise a curriculum for training programmes in the related areas, to ensure that the consumers are guided well and the ART procedures carried on by the trained staff are safe and efficient. The data collected by the registry will be used while framing policies, guidelines and for research purposes. Bill 2014 also confers some duties on the ART clinics and banks which include, counselling the patients regarding the implications and chances of the success of the ART procedures, informing the patients about the advantages, disadvantages, side effects, risks and explaining to them the choices of treatment and alternative solutions like adoption available to them. If followed staunchly this will assist the women in becoming aware of their reproductive rights and will also aid the women in exercising these rights and making informed decisions. Moreover, the Bill 2014 holds the clinics and banks responsible to ensure that the couple willing to undergo the treatment is eligible and medically fit to avoid any (un)foreseeable complications.
Additionally, the bill also has provisions which make the written consent and an agreement a compulsion to undergo any ART procedure, guarantee to keep the personal details like name and contact details confidential, provide insurance to cover for any complication that arises during pregnancy (for surrogate mothers) and etc. Also, the bill specifies the duties of gamete donors, surrogate mothers, and couples seeking ART procedures. But, fails to provide any particular provisions to improve the healthcare of women and to ensure that the surrogate women are not taken advantage of. The Bill 2014 states that the couple commissioning and the surrogate consenting to carry the baby(ies)for the couple must enter into a contract. But, the Act has displayed ambiguity regarding the particulars of the contract, the role of ART clinics and banks in the contract and the compensation to be provided to the surrogate mother. Therefore, the terms and conditions, and the amount of monetary compensation have to be decided mutually between the couple and the surrogate. The Bill 2014 provides no provision to make certain that the surrogate is compensated adequately for her labour, there is no specification of any minimum amount or any mechanism to ensure that the surrogates are not underpaid.
THE INDIAN SURROGACY MARKET
Surrogacy is the most popular arrangement among the ARTs and India has been one of the most sought-after destinations for transnational surrogacy after commercial surrogacy was permitted in India in 2002. A new ‘fertility market’ has emerged in India, where reproductive body parts are bought, sold and hired.[37]36 This market sustains on the large number of Indian women, who are forced by their state of poverty and lack of employment opportunities to enter into this market. Commercial surrogacy treats these women and children as products which can be bought or sold as “means to serve the ends of others”.[38]37 The absence of legally binding regulations which focus on the operation of ARTs, accompanied with the free expansion of fertility clinics have together made India a global hub of reproductive tourism.[39]38 Unregulated development of the fertility industry raises questions regarding safety, ethics, and rights.[40]39 The attractive strategies adopted by the state to promote medical tourism, such as introduction of medical visas, providing incentives, loans and subsidies to interested tourists and creating affordable healthcare packages which include traditional therapies of yoga, Ayurveda, naturopathy, homeopathy, etc. attracts large number of tourists who are tempted by the low costs and unregulated environment.[41]40
The surrogacy markets are highly concentrated in developing countries “which have access to contemporary technology and skilled individuals who can provide surrogacy program(s) at lower costs and service wealthier nations such as the United States.”[42] Anand, a city in the western region of Gujarat, India is one of the most popular sites for medical tourism in India.[43] The total cost of a hiring a surrogate and the childbirth amo
unts to $20,000 in Anand; while in the USA or Canada it costs between $30,000 and $70,000.[44] Surrogacy in India has become a “survival strategy and temporary occupation” for the poor who have to bear the physical pain of bearing a child and face a high degree of stigma as their labour is often compared to sex work.[45] While some women feel the use of these technologies have made their status change from ‘objects’ and ‘victims’ to ‘ knowing subjects’ and ‘agents’ others believe it is another way to exert outside control on their bodies.[46]
unts to $20,000 in Anand; while in the USA or Canada it costs between $30,000 and $70,000.[44] Surrogacy in India has become a “survival strategy and temporary occupation” for the poor who have to bear the physical pain of bearing a child and face a high degree of stigma as their labour is often compared to sex work.[45] While some women feel the use of these technologies have made their status change from ‘objects’ and ‘victims’ to ‘ knowing subjects’ and ‘agents’ others believe it is another way to exert outside control on their bodies.[46]
Until the case of Baby Manji Yamada v. Union of India & Ors. (2008)[47], where the supreme court held that commercial surrogacy was legal in India, the guidelines released by the MOHFW and ICMR which had no legal authority as they weren’t adopted as law, governed the surrogacy contracts. Later, in 2015 an affidavit was filed by the MOHFW with supreme court to ban foreigners from availing surrogacy services in India which declared that India “does not support commercial surrogacy and the scope of surrogacy is limited to Indian married infertile couples only, and not to foreigners.”[48] Finally, a ban was placed by the Supreme Court of India on all commercial surrogacy agreements involving foreign couples or individuals by the order passed in the case of Union of India & Anr. v. Jan Balaz & Ors. (2015)[49]. The government following the example set by the Supreme Court, incorporated a clause in the Surrogacy (Regulation) Bill, 2016[50]l which will place a complete ban on commercial surrogacy, when the bill is passed. Critics feel that the ban doesn’t help in improving the conditions of the surrogate mothers, but only closes the door for them.[51] Instead of regulating the business, the decision to completely forbid it will force the surrogacy business to go underground.[52] The bill also bans advertisements and other forms of notices which encourages commercial surrogacy but permits altruistic surrogacy. In addition to this, the bill also specifies that only couples with proven infertility can avail surrogacy which will keep a check on the rapidly growing population of the country and ensure that the couples who in reality require this assistance are able to avail it.
The Indian commercial surrogacy market before the banning of international surrogacy agreements, contributed millions of dollar to the country’s economy every year[53] and so there has been a very high demand of women willing to act as surrogate mothers. This market attracts women who are from illiterate and uneducated family background and are willing to be burdened to earn an extra income to make ends meet. Therefore, if the government focuses on improving educational facilities and providing job opportunities to women in rural areas, an alternative can be provided to these women. It is also required for the government to bring into power regulations to protect the parties involved in a surrogate contract, in particular, the surrogate mothers who are at a weaker position and so are more vulnerable to exploitation.
CONCLUSION
Female independence can only be brought about when women themselves are able to determine and accomplish their needs and are not subjected to fulfil any obligations. Accessibility and availability of ARTs to aid the process of reproduction, favour women when they are used to attain women’s personal choice to have a genetically related child(ren), but harm women’s growth when the use of these technologies are forced upon the women to be accepted in the society. Thus, a set of substantive and procedural guidelines which regulate and administrate the business of ARTs in India can ensure these new technologies contribute to the progress of women and not worsen their situation.
[1]* Author is a student at Christ (Deemed to be University), Bengaluru.
[2] Vrinda Marwah & Sarojini N, Reinventing reproduction, Re-conceiving Challenges: An Examination of Assisted Reproductive Technologies in India, 46 ECONOMIC AND POLITICAL WEEKLY 104, 105 (2011).
[3] G. Pennings, Ethical Issues of Infertility Treatment in Developing Countries, 2008 ESHRE MONOGRAPHS 15, 16 (2008).
[4]3 Sama Team, Assisted Reproductive Technologies in India: Implications for Women, 42 ECONOMIC AND POLITICAL WEEKLY 2184, 2185 (2007).
[5]4 Ulrich M & Weather A, Motherhood and Infertility: Viewing Motherhood Through the Lens of Infertility, 10 FEMINISM PSYCHOL 323, 323 – 336 (2000).
[6]5 Vayena E et al, Assisted Reproductive Technology in Developing Countries: Why Should We Care?, 78 FERTIL STERIL 13, 13-15 (2002).
[7]6 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), http://www.refworld.org/docid/3ae6b3712c.html.
[8]7 International Conference on Human Rights Tehran, Resolution XVIII: Human Rights Aspects of Family Planning, Final Act of the International Conference on Human Rights, Apr. 22, 1968. U.N. Doc. A/CONF. 32/41, 15.
[9]8 Robert H. Blank, Assisted Reproduction and Reproductive Rights: The Case of in Vitro Fertilization, 16 POLITICS AND LIFE SCIENCES 279, 280 (1997).
[10]9 Id at 281.
[11] JOHN ANCONA ROBERSTON, CHILDREN OF CHOICE: FREEDOM AND NEW REPRODUCTIVE TECHNOLOGIES (Princeton University Press 1994).
[12] Id.
[13] M M Peterson, Assisted Reproductive Technologies and Equity of Access Issues, 31 JOURNAL OF MEDICAL ETHICS 280, 281 (2005).
[14] ROBERSTON, supra note 15.
[15] Peterson, supra note 17, at 282.
[16] Marwah, supra note 1.
[17] Marwah, supra note 1 at 107.
[18] Pennings, supra note 2 at 17.
[19] Marwah, supra note 1 at 106.
[20] Marwah supra note 1 at 106.
[21] Asha Moodley, Defining Reproductive Rights, 27 AGENDA: EMPOWERING WOMEN FOR GENDER EQUITY 8, 10 (1995).
[22] BARZALETTO ET AL, REPRODUCTIVE HEALTH: A STRATEGY FOR THE 1990s ( The Ford Foundation 1991).
[23] Marsha Freeman, Measuring Equality: A Comparative Perspective on Women’s Legal Capacity and Constitutional Rights in Five Commonwealth Countries, 5 BERKLEY WOMEN’S LAW JOURNAL 110, 110-115 (1990).
[24] UN General Assembly, Universal Declaration of Human Rights, 217 A (III), (June 7, 2018, 11:15 AM), http://www.refworld.org/docid/3ae6b3712c.html.
[25] Marwah, supra note 1 at 105.
[26] Anjali Wigde & John Cleland, The Public Sector’s Role in Infertility Management in India, 24 HEALTH POLICY AND PLANNING 108, 108 – 115 (2009).
[27] World Health Organization, The World Health Report 2006, Annex table 2 (June 9, 2018, 04:30 PM), http://www.who.int/whr/2006/en/.
[28] Pennings, supra note 2 at 17.
[29]28 Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, (June 8, 2018, 12:10 AM), https://icmr.nic.in/art/art_clinics.htm.
[30]29 Sama Team, Assisted Reproductive Technologies: For Whose Benefit? , 44 ECONOMIC AND POLITICAL WEEKLY 25, 25 (2009).
[31]30 The Law Commission Of India, Need for Legislation to Regulate Assisted Reproductive Technology Clinics as Well as Rights and Obligations of Parties to a Surrogacy, Report No. 228 (June 10, 2018, 12:30 PM), http://lawcommissionofindia.nic.in/reports/report228.pdf.
[32]31 Kari Points, Commercial Surrogacy and Fertility Tourism in India: The Case of Baby Manji, THE KANAN INSTITUTE FOR ETHICS AT DUCK UNIVERSITY, (June 9, 2018, 11:30 PM), https://web.duke.edu/kenanethics/casestudies/babymanji.pdf.
[33]32 Ministry of Health and Family Welfare, Assisted Reproductive Technology (Regulation) Bill and Rules 2008, (June 5, 2018, 4:00 PM), http://www.prsindia.org/uploads/media/vikas_doc/docs/1241500084~~DraftARTBill.pdf.
[34] Amrita Pande, “At Least I Am Not Sleeping with Anyone”: Resisting the Stigma
of Commercial Surrogacy in India, 36 RE-INVENTING MOTHERS 292, 293 (2010).
of Commercial Surrogacy in India, 36 RE-INVENTING MOTHERS 292, 293 (2010).
[35] Sama Team, Supra note 29, at 26.
[36] Ministry of Health and Family Welfare, Assisted Reproductive Technology (Regulation) Bill and Rules 2014, (June 5, 2018, 4:39 PM), http://www.prsindia.org/uploads/media/draft/Draft%20Assisted%20Reproductive%20Technology%20(Regulation)%20Bill,%202014.pdf.
[37]36 Sama Team, supra note 1, at 106.
[38]37 Brenda M. Baker, A Case For Permitting Altruistic Surrogacy, 11 HYPATIA 34, 34 (1996).
[39]38 Marwah, supra note 1, at 106.
[40]39 Marwah, supra note 1, at 106.
[41]40 Marwah, supra note 1, at 106.
[42] Usha R. Smerdon, Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India, 39 CUMB. L. REV 15,15 (2008).
[43] Amrita Pande, “At Least I Am Not Sleeping with Anyone”: Resisting the Stigma of Commercial Surrogacy in India, 36 RE-INVENTING MOTHERS 292, 293 (2010).
[44] Id at 195.
[45] Amrita Pande, Commercial Surrogacy in India: Manufacturing a Perfect Mother-Worker, 35 SIGNS 969, 975 (2010).
[46] Pande, supra note 43.
[47] Baby Manji Yamada v. Union of India & Ors., (2008) 13 SCC 518 (India).
[48] Nirmala George, Surrogates feel hurt by India’s ban on foreign customers, CTV NEWS (June8, 2018 11:09 AM), https://www.ctvnews.ca/health/surrogates-feel-hurt-by-india-s-ban-on-foreign-customers-1.2663609.
[49] Union of India & Anr. v. Jan Balaz & Ors., SLP (Civil) No. 31639/2009 (India).
[50] Ministry of Health and Family Welfare, supra note 46.
[51] Nirmala George, Surrogates feel hurt by India’s ban on foreign customers, CTV NEWS (June8, 2018 11:09 AM), https://www.ctvnews.ca/health/surrogates-feel-hurt-by-india-s-ban-on-foreign-customers-1.2663609.
[52] Id.
[53] Nida Najar, India Wants to Ban Birth Surrogacy for Foreigners, N.Y. TIMES (June 3, 2018, 12:30 PM), https://www.nytimes.com/2015/10/29/world/asia/india-wants-to-ban-birth-surrogacy-for-foreigners.html