The Assisted Reproductive Technologies

ABSTRACT

Legal decisions encompass assumptions about the nature of social life and notions about what constitutes “proper” moral conduct. Contemporarily, questions have arisen as to what constitutes a family or a “normal family”. Growth in science coupled with liberal changes in the law has lead to a shift from the concept of families as known traditionally. The article analyses the Assisted Reproductive Technologies (Regulation) Bill, 2010 which is to be tabled in the Monsoon Session of the Indian Parliament to examine the existent notions of family in India. Further, the article scrutinizes the Bill, drafted in order to regulate procedures regarding the use of assisted technologies for reproductions in India, in the light of the right to equality and prohibition of discrimination on grounds of sexual orientation. The Preamble to the Bill recognises the right of every couple to have a child. Ironically, the Bill does not acknowledge the right of homosexual couples in India to avail assisted reproductive technologies in order to do the same. The article proves the existence of a right to reproduce and further argues that such a right is inclusive of reproduction through assisted reproductive technologies by resorting to constitutional guarantees of privacy and equality. Since such a right has been denied to homosexuals, the article then subjects the Bill to non-discriminatory test and strict scrutiny analysis in order to deduce the constitutional validity of the Bill. The article concludes by recommending changes in the Bill in order to allow homosexual parenthood, thus furthering the attainment of “full personhood” as contemplated in the Naz Foundation case.

I. INTRODUCTION

The right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy… Disapproval of homosexuality cannot justify invading the houses, hearts and minds of citizens who choose to live their lives differently. [1]

-Justice Blackmun

Decriminalisation of consensual sexual acts between adults in India was a significant and progressive leap taken by the High Court of Delhi in the Naz Foundation v. Government of NCT of Delhi [2] (hereinafter Naz Foundation case). The court also established the right of homosexuals to full personhood. [3] “Personhood” is the sense of being an individual. It encompasses self-development, dignity, and humanity. Personhood is developed through introspection, relationships with others, and through one’s interactions with the state. [4]   Thus, for complete attainment of homosexual personhood, it is imperative that the focus now be shifted to rights that need to be afforded to homosexuals in order to enable them to lead a normal life. One of such rights is the right to reproduce. Since same-sex couples cannot reproduce by heterosexual means, they are left with no options but to employ assisted reproductive technologies to have children genetically related to them. However, the Assisted Reproductive Technologies (Regulation) Bill, 2010 [5] imposes legal hurdles disabling homosexual couples in India from resorting to assisted reproductive technologies.

Assisted Reproductive Technologies (ARTs) are non-coital methods of having children including in-vitro fertilisation, artificial insemination and surrogacy. In-vitro fertilisation of embryos refers to embryos whose fertilisation, or any other process by which the embryo was created, began outside the human body. Artificial insemination is the process by which sperm is placed into the reproductive tract of a female for the purpose of impregnating the female by using means other than sexual intercourse. The most common instance of non-coital procreation among female same-sex couples involves gay women who request artificial insemination with sperm obtained from donor friends or purchased from sperm banks. Surrogacy is an arrangement in which the child is borne by a woman outside the couple. A commercial surrogate mother is one who is commissioned and paid to undertake the labour of pregnancy in order to produce a child that will be delivered to the commission parties who will raise the child as their own and will hold all the parental rights. A partial surrogate contributes the egg that becomes the child and so is genetically as well as gestationally the parent of the child. A full surrogate is not the genetic other of the child she bears. For male same-sex couples, surrogacy is the only means of assisted reproduction to have a child. In some cases, the surrogate mother provides the egg which is fertilised with sperm obtained from either of the males. In other cases, egg is obtained from a donor and fertilised with sperm obtained from either of the partners and the zygote is implanted in the surrogate mother who will gestate the child.

This article analyzes the procreative liberty of gays and lesbians and their right to use assisted reproductive technologies to form families. It argues that all persons, regardless of sexual orientation or marital status, have the right to procreate and to use ARTs when necessary to achieve that goal. The article explains as to why and how barriers preventing access to assisted reproductive technologies by homosexuals should be removed and concludes by making suggestions regarding the same. Part II elucidates how Indian same-sex couples have not been given any rights to access ART as a “couple” under the Bill. Part III establishes the existence of a right to reproduce which encompasses reproduction by means of assisted reproductive technologies thereby bringing assisted reproductive technologies within the scope of Article 21 of the Indian Constitution. Part IV explains the discriminatory consequence of the Bill and argues that all persons, irrespective of their sexual orientation, should be permitted the use of ART. Lastly, Part V examines the constitutional validity of such provisions through the “strict scrutiny” analysis. It proves that concerns such as absence of legal recognition of same-sex couples in India or the quality of gay parenting are irrational and do not form a “compelling interest” on the part of the state to prevent same-sex couples from accessing assisted reproductive technology. PART VI examines laws of countries which have given recognition to procreative liberty of homosexual couples through ARTs.

II.THE ASSISTED REPRODUCTIVE TECHNOLOGIES (REGULATION) BILL, 2010 AND SAME-SEX COUPLES

The Assisted Reproductive Technology (Regulation) Bill 2010 allows married couples, individuals as well as unmarried couples to have access to various methods of assisted reproductive technologies in India [6] . However, despite its liberal approach, homosexual couples in India have been barred from using ARTs.

“Unmarried Couple”, according to the Bill, means two persons of marriageable age, living together with mutual consent but without getting married, in a relationship that is legal in the country or countries of which they are citizens. [7] By ruling that section 377 of the Indian Penal Code was violative of Articles 14, 15 and 21 of the Indian Constitution, the High Court of Delhi in Naz Foundation case, decriminalised consensual sexual acts in India [8] . The decision relied on foreign references, not only from the United States of America and the United Kingdom, but also from Hong Kong, Fiji and Nepal destroying the notion that “gay rights” are a Western concept. However, homosexual relationships are yet to be legalised in India and thus, Indian same-sex couples are excluded from the ambit of an “unmarried couple” as defined by the ART Bill.

The Bill also allows an individual to opt for assisted reproductive technology methods giving him or her complete parentage rights over the commissioned child. It might be contended that by permitting individuals to have access to ART, the bill gives same-sex couples in India an opportunity to be parents. If a same-sex couple in India- X and Y- decides to have a child by means of ART and X, as an “individual” under the ART Bill, commissions a child, only X shall be recognised as the legal parent [9] and Y would have no legal rights over the child. Y may be unable to consent to medical care, meet with school officials, or represent the child’s interests to various government agencies.  Most importantly, Y’s position is most perilous if the relationship between them ends. Y is legally unrelated to the child and has no right to any continuing contact with the child. The relationship between the two may end because they decide to separate. If they do so, they may be unable to agree on dividing childcare responsibilities. When they litigate for custody, X begins with an overwhelming advantage over Y [10] .  This is because of the general rule that a court prefers a parent or a natural guardian [11] to a non-parent in a custody matter.

In certain states of America [12] , “second parent adoption” is enabled whereby a legally recognized parent’s committed partner may adopt and become a co-parent of the child. [13] It is the legal recognition of the parental relationship between a homosexual and her partner’s biological or adopted child, without termination of the partner’s already legally recognized parental rights. Second parent adoption does not require the legal parent to be married to the party seeking to adopt the child [14] . Thus, by second-parent adoption, both partners of a same sex couple, who cannot marry in most jurisdictions, can be legal parents of the child.

However, for Indian same-sex couples, adoption by the other partner is not a plausible option. For example, if both the partners are Hindus, according to the Hindu Adoption and Maintenance Act, 1956 the child severs all his ties in the family of his birth which are replaced by those created in the adoptive family. [15] Since, same sex couples in India are not married or otherwise in any form of legal relationship, the effect of adoption by one partner would not create ties between the child and the other partner. There are no statutory provisions for a second parent adoption in India.

Thus the Bill does not allow same-sex couples in India to have a child of whom both partners are legal parents. It has been said that the Bill is liberal in the sense that it allows homosexuals to have children by means of ART as individuals and leaves further scope for same-sex couples to have children by ART once their relationship is legalised in India [16] . Yet, at issue is a denial of a right rather than a mere delay in when the right can be exercised, and thus “critical examination” is required.  [17]

III. IS THERE A RIGHT TO ASSISTED REPRODUCTIVE TECHNOLOGIES?

To establish a right to assisted reproductive technologies, it needs to be determined if there exists a “right to reproduce”- at all-and whether such a right encompasses the assistance of new technologies.

The right to reproduce can be regarded as a moral right as well as a legal right. [18] John Robertson, deriving the moral right from dignity, states that the decision about reproduction best captures “the importance of procreative liberty” since “control over whether one reproduces or not is central to personal identity, to dignity, and to the meaning of one’s life”.  One’s self-definition, he explains, can be affected in the most basic sense when deprived of the ability to avoid reproduction, impacting upon one’s “psychological and social identity and one’s social and moral responsibilities”. Further, a disability to reproduce, Robertson remarks, “prevents one from an experience that is central to individual identity and meaning in life”, and its denial, whether through infertility or external restriction, “is experienced as a great loss” [19] . As, Roger Chin puts it, it seems extreme to question the choice of any two people to have a child. [20]

Legally, on the other hand, the right to reproduce traditionally finds its origin in the right to found a family. The Universal Declaration of Human Rights (UDHR), 1948 and the International Covenant on Civil and Political Rights (ICCPR), 1976 by Article 16 and Article 23(2) respectively, give “men and women of full age” the right to found a family.

Scholars may contend that the draftsmen of the UDHR or ICCPR never intended to include families of same-sex couples within the meaning of “family” as provided under these articles. However, such an argument is refutable and non conclusive since scopes of various provisions have been enlarged according to changing times and development of new technologies. Further, political, social and economic changes might bring about recognition of new rights and the law to meet social demands. [21]

The House of Lords, in Fitzpatrick v Sterling Housing Association Ltd. [22] , stating that the concept of family had undergone a change, both in the United Kingdom and overseas, held as follows:

Social groupings have come to take a number of different forms. The form of the single parent family has been long recognised. A more open acceptance of differences in sexuality allows a greater recognition of the possibility of domestic groupings of partners of the same sex. The formal bond of marriage is now far from being a significant criterion for the existence of a family unit. While it remains as a particular formalisation of the relationship between heterosexual couples, family units may now be recognised to exist both where the principal members are in a heterosexual relationship and where they are in a homosexual or lesbian relationship. [23]

The right to found a family has also been laid down by the Yogyakarta Principles [24] on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity. Principle 24 clearly states that every person has a right to found a family irrespective of his or her sexual orientation or gender identity and that no family should be subject discrimination based on the sexual orientation of its members. [25]

Thus, keeping in view the changes in societal patterns, families of same-sex couples should be read within the scope of “family” as provided in the UDHR and ICCPR. Impliedly, same-sex couples, as per the two conventions, have a right to found a family which includes the right to procreate.

In the contemporary scenario, however, right to reproduce is encompassed within the right of privacy-a facet of Article 21 of the Indian Constitution. [26] Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. [27] In R. Rajagopal v State of T.N. [28] , the Supreme Court held the right to privacy is “the right to be left alone”. The two-judge bench stated that a citizen had a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among many other matters. [29] Construing this right to be left alone in matters of procreation, state’s interference or restrictions on procreation would be a direct encroachment on one’s privacy.

Further establishing this principle, the High Court of Andhra Pradesh in B.K. Parthasarthi v State of AP [30] held that there is a right to make a decision about reproduction and such a right is very personal on the part of every man or woman. The court further proceeded to state that such a right “includes the right not to produce” [31] . The use of “includes” by the court brings forth an obvious implication that the decision as to reproduction could be negative as well as an affirmative. Thus the High Court of Andhra Pradesh expressly established the right of “reproductive autonomy” and held that it was a part of right to privacy. [32]

The High Court of Andhra Pradesh, in the judgement, concurred with the right to reproductive autonomy as established in America through a line of cases, though mainly in dicta. In T. Skinner v State of Oklahoma [33] , the US Supreme Court characterised the right to reproduce as “one of the basic civil rights of man” [34] . Further, by striking down a law that regulated the distribution of contraceptives because it discriminated between married and single persons, the Supreme Court of United States in Eisenstadt v Baird [35] established a fundamental right to “bear or beget a child” [36] .

The next question that follows is whether this right to reproductive autonomy implies a right to reproduce with the help of various reproductive technologies or does the use of a doctor, petri dish or other technology in the process of reproduction render it any less of a right? An act of procreation refers to a voluntary act taken by an individual that is either one of the two most proximate causes of the conception of a future person or persons, with such person or persons eventually being born.   A couple that enters into a surrogacy contract and bears no biological relationship to the resulting child, but whose acts might be considered the proximate cause of its conception and birth, has arguably procreated. The relevant consideration is whether a person or persons have voluntarily acted to cause the creation of another being, and those actions have resulted in the birth of a child. [37]

Thus, if the Constitution protects coital reproduction from state interference, there are strong grounds for concluding that it would protect non-coital techniques involving the couple’s own gametes to the same extent as their efforts to reproduce coitally.  [38]

Moreover, the courts have protected the right to use contraceptives [39] and the right to abortion [40] as a part of the right to reproductive autonomy. If the courts have sheltered the right not to produce a child by employment of technologies that are not natural, it would be irrational to state that the right to bear a child extends to only fertile couples and by employment of coital means and does not include the right to assisted reproductive technologies. Applying a similar logic, the district court of Illinois, in Lifchez v. Hartigan [41] , held that “it takes no great leap of logic to see that within the cluster of constitutionally protected choices that includes the right to have access to contraceptives, there must be included within that cluster the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy.” [42]

Thus, it would not be unwarranted to construe that the right to reproduce includes the right to assisted reproductive technology. Since the right to reproductive autonomy is a part of the right to privacy- an important facet of Article 21 of the Constitution- it can be inferred, by the doctrine of implied Fundamental Rights [43] , that this right to assisted reproductive technologies is a fundamental right in itself.

IV. NON-DISCRIMINATORY ANALYSIS

Article 14 of the Indian Constitution guarantees to Indian citizens “equal protection of laws” and Article 15 prohibits the State from discriminating between individuals “on grounds of religion, race, caste, sex, place of birth or any of them.”

Indirect discrimination occurs when a provision puts persons having a status or a characteristic associated with one or more prohibited grounds at a particular disadvantage compared with other persons. [44] The path breaking Naz Foundation [45] judgement established that discrimination against individuals on the ground of their sexual behaviour is analogous to “sex” under Article 15 and was thus prohibited. [46] Thus, when the Bill disadvantages same-sex couples as compared to heterosexual couples by allowing married heterosexuals to access ART and not granting access to the same to unmarried same-sex couples, it indirectly discriminates against homosexuals. The consequences of discrimination have been stated by John Gardener as followed:

Discrimination on the basis of our immutable status tends to deny us life. Its result is that our further choices are constrained not mainly by our own choices, but by the choices of others. Because these choices of others are based on our immutable status, our own choices can make no difference to them. …. And discrimination on the ground of fundamental choices can be wrongful by the same token. To lead an autonomous life we need an adequate range of valuable options throughout that life…. there are some particular valuable options that each of us should have irrespective of our other choices. Where a particular choice is a choice between valuable options which ought to be available to people whatever else they may choose, it is a fundamental choice. Where there is discrimination against people based on their fundamental choices it tends to skew those choices by making one or more of the valuable options from which they must choose more painful or burdensome than others. [47]

As explained above, since there exists a right to ARTs when infertile, it is unlikely to limit such a right to persons who are married since a person’s interest in reproduction exists independently of marriage [48] It cannot be denied that homosexuals too may have strong desires to have or care for offspring.  They too have been brought up in families and in a society that identifies having and rearing children as an important source of meaning and fulfilment. [49] The Model Assisted Reproductive Technology Act [50] prohibits restrictions on grounds of sexual orientation as well. [51]

The State might argue that such discrimination is permitted since the possibility of same-sex couples having children is impossible and unnatural. If that might be the case, then the State cannot, in the case of married infertile heterosexuals, aid them in having children by ART. Since nature has not equipped such heterosexuals to reproduce, then the state should not interfere with nature by assisting them to do so. [52] However, if it does, there seems to be no comprehendible reason as to why it should not aid same-sex couples as well.

Moreover, certain countries like Belgium [53] , Canada [54] , Netherlands [55] , Iceland [56] , South Africa [57] , Spain [58] , Sweden [59] and certain states of America like Iowa, Columbia recognise same-sex marriages. Thus, same-sex couples who are citizens of such countries can legally opt for assisted reproductive technologies in India since the Bill allows a married couple [60] whose marriage is legal in the country or countries of which they are citizens to opt for ARTs. Another conspicuous feature of the Bill is that it allows “unmarried couples” constituting two persons, both of marriageable age, living together with mutual consent but without getting married, in a relationship that is legal in the country or countries of which they are citizens [61] to have children by means of assisted reproductive technologies [62] . Such legal relationships include “civil union”, registered partnership” and their likes in countries such as Denmark [63] ,United Kingdom [64] , Austria [65] , Germany [66] , France [67] , Iceland [68] and the states of California, New Jersey in the United States. The consequence is clearly discriminatory and unwarranted against same-sex couples in India.

Consequently, the Bill not only discriminates between married heterosexuals and same-sex couples, but also discriminates between Indian same-sex couples and their counterparts in countries that have granted legal recognition to homosexual relationships. The reason for the same, however, is unconvincing.

V. STRICT SCRUTINY ANALYSIS

As concluded above, the right to assisted reproductive technologies is a fundamental right within the meaning of Article 21 of the Indian Constitution. Also, the Constitution of India, by virtue of Article 14, guarantees to its citizens the fundamental right of “equality before the law” and “equal protection of the laws”. However, the Bill discriminates between Indian sa