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A Legally Enforceable Agreement in Assisted Reproductive Technology: Need of the Hour

Socio Legal Corp

Written By – Sofia Bhambri

Taking aid of Assisted Reproductive Technology in these times is not unheard of. Male as well as female infertility issues can plague any couple whether lawfully married or even for a couple which is cohabiting in a Live in Relationship or for a man or a woman who wish to become parents but are lawfully recognized as a couple. Now, the ART Bill, 2020 categorically prohibits and make the practice of surrogacy illegal, as well as abandonment or exploitation of child born of such procedure.

It is vocal about rights of child born to a commissioning couple, and relinquishment of parental right of donor however, what about that situation where there is no commissioning couple and the donor, let us suppose in this case there is a male who has impotency meaning thereby, that he is incapable of performing sexual intercourse. Hence, instead of three people involved there are only two people involved. One is a sperm donor and another is the woman who wishes to be a mother of her own accord and who is not married to anyone.

Single women are making parenthood choices as they are financially well equipped to raise their child even alone. This situation has not been highlighted under the reproductive law of our country. No doubt, there will be a consent agreement and other standard medical agreements between the clinic, donor and the women who wishes for intrauterine insemination abbreviated as IUI. However, whether an agreement or Memorandum of Understanding between the sperm donor and the prospective mother is valid in eyes of law qua their and the child’s rights born through such procedure, is yet to be explored. 

What would be the legality of such agreement whereby pre-determined rights of both the parties as well as the child are laid down? What if, in future the woman who was financially capable is now unemployed or does not have necessary means of income in such a case, will a maintenance petition before the Court be maintainable? As the Courts of Justice have not yet witnessed such peculiar cases as a routine or even occasionally. 

Presence of agreement is one thing and enforcing it or challenging it in Court of Law is completely a different scenario. Hence, in a scenario where the woman is no longer capable maintaining her child then will a maintenance suit lie against the donor, who does not wish to maintain such a child due to the clauses laid down in the agreement or MOU. Well principles of natural justice point towards something else, if these principles are applied in essence then the child who is still a minor or has suffered some disability ought to be provided with maintenance amount based on the assets and liabilities of the donor father. Now, it is very much clear position in law that a couple living in the circumstance akin to marriage are to be treated as a married couple for the purpose of Domestic Violence Act, 2005. For an aggrieved woman to file her application under section 12 it becomes a lot more conducive, so that her maintenance application could also be adjudicated upon. However, the criteria for it is quite different from the scenario which is being envisaged here.

The discussion here is altogether on a different tangent and it is safe to state that yes, it taboo too particularly in a society such as ours.

The existing law on reproduction is silent on such complexities which are sure to emerge in near future. The Courts have to devise a way to provide justice in all quarters, herein it is the donor, the woman and the child which would be the recipients of justice or even maintaining their status quo as such.

The ART Bill,2020 is no doubt visionary in nature, however, on some tangents it is yet to address the emerging issues pertaining to assistive human reproduction methods.  Already the pendency of cases is skyrocketing in India and it is the legislature’s duty to come up with foolproof laws which would actually cater to the emerging issues of the society, instead the field has been left open and as and when the intervention of Courts are required, the judicial system would provide assistance. 

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