REPRODUCTION: A DISCUSSION IN THE CONTEXT OF RIGHTS1

Articulating around human reproduction and individual control over the ‘beginnings of human
life’ presents a unique challenge within contemporary social history and institutional life. It is
especially so within the countries that value and uphold the democratic ideals. The legal
academia has often found itself grappling with the normative clashes that a discourse on
reproduction generates. Since the legal and policy questions concerning human reproduction
have sprawled over several disciplines, a concrete stance of the law presenting a singular view
has been a rather difficult task. The academic debates surrounding the reproductive sphere have
thereby created a jigsaw of sorts with many of the pieces still left un-arranged. Take for instance,
the issues relating to ‘abortion’ which still poses difficulty in arriving at a consensus beyond the
period of early abortion. The theorizing on abortion also fall into so many segments that it is
difficult to converge the fragments into one composite whole.

The context from where human reproduction emerges as a subject of legal scrutiny is directly
proportional to the control that human being gained over his/her reproductive process. When an
individual could do little to control his fertility or infertility, law was of comparatively little
importance.2 As the reproductive process has been opened up to more intensive scrutiny, and as
the opportunities for its external manipulation multiply, law has assumed an ever greater
significance.3 In addition to some important statutes and developments in the common law, there
is also now an expanding body of diverse regulatory practices that are directed towards the
governance of human procreation.

The need for governance arises essentially when the subject matter gives rise to rights, or to be
specific, competing rights. Recognized as the fundamental of all human rights the right to life is
considered a peremptory norm of general international law or jus cogens.4 Within the wide ambit
of this right to life there are many layers- right to health, privacy, dignity and autonomy et. al. all
of which constitute the foundational elements of right to life. The heft with which human rights
movements have generated the rhetoric on reproduction makes it one of the most impactful and

1
Dr. Debashri Sarkar, extracts from the Journal of the NHRC, Vol.15, 2016
2
Emily Jackson, Regulating Reproduction: Law, Technology & Autonomy, Hart Publishing, 2001, pg. 1
3
Ibid.
4
Smith, Scientific Freedom, Fetal Experimentation, and Collaborative Reproduction, Kluwer Law International,
2000, p. 38.
elaborately pronounced agenda within the language of rights. There are equally compelling right-
to and right-against components of autonomy hence they concern both a study of pro-
reproduction and anti-reproduction technologies. When a right is assigned to an act like
reproduction it inevitably acknowledges the intimacy between pregnancy and self-sufficiency of
the individual (women) thus giving rise to the question of autonomy, which makes it an
important jurisprudential principal to evaluate.

So, as it is noted, that the act of creating and rearing biological descendants has been regarded as
immensely significant for individuals and for society. The process of reproduction conceives a
range of values with deep social-cultural significance. A simple understanding of ‘reproduction
or procreation’5 goes as creation of biological descendants through gametic fusion with a
partner, gestation by the female, and usually rearing by one or both of the procreators 6. It
is this social dimension that determines and allocates value to reproduction as an inevitable
human desire to replenish its next generation.

Since reproduction is linked with the concepts of autonomy, liberty and self-determination and
theorized upon heavily in the courts of law, it seems almost indisputable that every person has a
right to become a parent7. This right to be a parent and make off-spring emerges from one of the
primeval and elementary desires and interests that a person may have. Such interests, it would be
fair to assume, constitute with much significance a person’s self-identity and sense of belonging
to the living society8. Furthermore, it is also argued that humans have a basic reproductive
instinct derived from ‘guiding principles of evolution’. This biological instinct of a human being
is transmitted over generations and across cultures as an essential (human) physiological
dimension9.

5
The author shall use the term almost inter-changeably throughout the discussion.
6
John A. Robertson, Non-coital Reproduction and Procreative Liberty, Constitutional Rights, Law, and Public
Policy, pg. 250, From section II of Embryos, Families, and Procreative Liberty: The Legal Structure of the New
Reproduction, Southern California Law Review59 (1986), pp. 939-1041. Reprinted with permission of the
Southern California Law Review.
7
Ibid. at p.251
8
Daniel Sperling, “Male and female he created them”:Procreative liberty, its conceptual deficiencies and the
legal right to access fertility care of males, International Journal of Law in Context, 2011, p. 1
9
Ibid at p.2
It therefore seems as a logical derivation to accord persons a certain degree of liberty in creating
and rearing biological descendants10. Within marriage, which is a socially accepted sexual union
recognized, is highly plausible and has been widely accepted. Thereby, stretching the corollary a
bit further, it also seems equally reasonable to grant some degree of liberty to reproduction to
such couples and stretching it to even non-coital (and collaborative) reproduction.

Noting the immense importance of reproduction for individuals and societies, it is not surprising
that many cultures have elaborate rule systems for how and when reproduction should occur, and
who may reproduce with whom.11 Reproduction is today evolved as an area of legitimate medical
intervention with the involvement of both simple and complex techniques.

In this chapter, the author shall examine the emergence and establishment of ‘reproduction’ as a
“right” and the wide-ranging choice that this right entails; it analyzes the legal basis of
reproduction and state interests in governing the procreative behavior of the individuals. While
deliberating on a larger theme, the chapter aims at establishing the basic theoretical framework
for the ART discourse- the distinctions and dilemmas that they are laden with.

Human Reproduction as a jurisprudential subject represents many things under one umbrella- it
is a ‘matter of moral principle, distributive justice, gender justice, social policy and democratic
values’12 among others. These multiple meanings and the parallel developments across the
disciplines, technologies and national as well as international policies, make reproduction a
comprehensive subject to examine. It thus becomes significant to understand the dilemmas faced
in legislating human reproduction in the present technological context and de-construct the
commonalities and differences of the varying issues within the reproduction paradigm.

While formulating extensively on other aspects of reproduction, the subject of assisted

conception and third party collaboration in a procreative context still finds itself influenced by
the ideologies set forth by the other wings of reproductive discourses 13, hence it becomes
important to analyze the boundaries of reproductive choice from a broader and all-encompassing

10
Id.
11
See supra note 5 at p. 252.
12
Cohen, Abortion and Reproductive Rights, The Oxford Handbook of Legal Studies, 2005, p. 674
13
Therese Murphy (ed.), The Texture of Reproductive Choice: Law, Ethnography and Reproductive Technologies,
in New Technologies and Human Rights, pp. 198-199 OUP 2009.
perspective. Therefore, in the following segment, an attempt has been made to trace procreation
within the rights-governance scenario and try to locate the socio-political values that call for such
a considerable state interest in this most private of human conduct in the present ART context.
The discussion considers the development of reproductive rights, scope of reproductive
autonomy and the extent of constitutional protection for non-coital conception and its
collaborative variations.

 The Development of Legal Right to Procreate- Articulating ‘Rights’ in

the Reproductive Realm: The Historical Underpinnings

It is rather difficult to pinpoint with certainty as to when exactly the procreative conduct of an
individual started to generate state interest and develop itself into a full-fledged area of legal
enquiry. Tentatively speaking, the law and policy on reproduction had skewed beginnings and
could be chronologically traced to the later part of the 19th century, when some legislations and
moral reformers campaigned for the criminalization of abortion in England and the United States
and witnessed the passage of several legislations that prohibited not only the practice but also
dissemination of information about abortion or contraception. 14 The first echoes of reproduction
as a legal area of enquiry could thus be tentatively tracked to the regulatory invocation of
collective morality from the mid-19th century to until the post World War era and the various
court orders and judgments that connected the constitutional principles to reproduction. The
documentation of this period echoes the presence of considerable state interest in preserving the
morality of the community at large. With this intention of preserving the moral fabric and under
the influence of the Church, led the states to don its paternalist character and enforce as well as
criminalize private human conduct including human sexual as well as procreative behaviour.

Thus, various aspects of reproduction were regulated around this time as a result of the
invocation of community morality. This was roughly around the mid-nineteenth century until
1930s when some of the initial attempts of constitutional challenges went in vain. The regimes
during this time drafted several laws pertaining to reproduction alone, however as and when the
political changes took place, these laws started receiving opposing views and emerged as the
ground for basing the rights discourse.

14
See Supra note 11 at p. 675.
For analytical coherence and understanding the unfolding of reproduction as a complex area of
normativity, the researcher has preferred to divide the developments into broadly four phases.
The division of these phases is not necessarily in the chronological order by the calendar, (as
many of the developments unfolded almost parallel in point of time) but it is made to highlight
the clusters of issues into which reproduction developed over the period, both conceptually and
legislatively.

Phase: I Foundations: This phase refers to the developments in the mid-nineteenth century,
which saw an almost similar tone of regulation in both the US and England with respect to
reproduction with the prime objective of enforcing morality by seeking to establish a link
between extra-marital sex and sinful behavior.15 The legislations of this period criminalized
adultery, categorized children into legitimate and illegitimate, and discouraged interracial
marriages between blacks and whites.16 The statutory enactments contravened reproductive
autonomy of women and brought into force a wide range of laws exclusively pronouncing the
aforementioned ideologies.

The first judicial junction in this phase was reached in 1927 with the historic Buck v.
Bell17decision of the U.S. Supreme Court- a case that brings forth the early position pertaining to
sterilization and is considered as the starting point of the long and tumultuous journey covered
by the advocates of reproductive rights.

This case basically emerged as a challenge to a statute that permitted sterilization of feeble
minded persons in the best interest of themselves and the society 18. In 1924, the Commonwealth
of Virginia adopted a statute authorizing the compulsory sterilization of the mentally retarded for
the purpose of eugenics19. Mr. Justice Holmes went on to write the majority opinion and upheld
the validity of the statute and recited that the petitioner “is the probable potential parent of
socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without
detriment to her general health and that her welfare and society’s welfare will be promoted by
15
See Supranote 11at p. 674.
16
Cohen, Comparison Shopping in the Marketplace of Rights’, review of Mary Ann Glendon, Abortion and
Divorce in Western Law, Yale Law Journal, 1998, p. 1235-76.
17
Supreme Court of the United States, 1927. 274 U.S. 200, 47 S.Ct.584, 71 L.Ed.1000
18
Michael & Roy, Genetic Control and Procreational Autonomy in Bioethics and Law- Cases, Materials &
Problems, American Casebook Series, West Publishing Company, 1981, p. 396
19
Id at 397.
her sterilization.”20 It was maintained that Buck, the petitioner represented a genetic threat to
society.

This case invited consistent criticism for the court’s cruel extremity and conservative inflexibility
in undermining involuntary sterilization and leaving out the scientific rationale to no examination
at all.21

This case led to the vocalizing of eugenics as a potential field of procreative contestation. This
judgment therefore, marked the onset of numerous debates on procreative autonomy vis-à-vis the
interest of state that was conditioned by the principles of eugenics. Although, Buck invited its
share of consistent criticism, its impact was clear in the understanding of state-interest in
governing the reproductive decisions of its people. This case, a one of its kind, laid the
foundation of challenges that a legislative scrutiny on reproduction can present. All the cases
after this one offered a much more careful a scrutiny in matters concerning human reproduction.

Skinner v. State of Oklahoma 22: Few years later, the position laid down in Buck v. Bell was put
forth again in a different era in the 1940s in this case. The time-period of Skinner is of some
significance: this was the beginning of the post II World War period when the Western world
had recognized dignity and peaceful coexistence as the most cherished virtues of the human
civilization. The articulation on human rights had also taken off and various international human
rights instruments had started to find its place in the chronicles of this period.

In the light of this backdrop, it becomes significant to appreciate Skinner. The opening lines of
the judgment read… ‘This case touches a sensitive and important area of human rights…a right
which is basic to the perpetuation of a race- the right to have offspring’ 23. Thus, it brought in
rights within the reproductive realm. In the present matter, the issue of involuntary sterilization
was brought for deliberations again wherein a local statute was involved that permitted the
sterilization of a habitual criminal convicted for felonies involving moral turpitude. This statute
was held to be unconstitutional on the ground that it violates the due process clause of the
American Constitution. The Supreme Court of the United States opined that the act of
20
Ibid.
21
See Supra note 11 at p. 676.
22
Supreme Court of United States, 1946.316 U.S.535, 62, Sup. Ct. 1110, 86 L.Ed. 1657
23
Emphasis supplied by the author.
procreation is one of the basic civil rights of man. Marriage and procreation are fundamental to
the very existence and survival of the race. In evil or reckless hands, the power to sterilize, if
exercised, can cause races or types which are inimical to the dominant group to wither and
disappear24. The remarkable distance that the court covered in Skinner from its stance in Buck v.
Bell indicates a normative re-thinking with respect to the significance of reproduction. The court
worried about involuntary sterilization as being in the nature of a deprivation of a ‘basic liberty’.

This case went to on to establish in subtle yet very clear words the notion that the ‘right to
procreation’ is fundamental. Skinner v. State of Oklahoma goes on to indicate strongly that
procreational autonomy is a constitutional value entitled to more than passing protection. The
aspect that went unnoticed however is the potential of the technology of eugenic sterilization that
largely vests control over human procreation in the hands of the state and the conflict of interests
that may arise in the wake of such technology.

Phase-II: The democratic ideals: The turn of events in the post World-War era brought about
the human rights ideals laid the foundation of a lot of norm writing and carving out principles
primary to human existence and growth. The principle value of ‘autonomy’, although could be
traced back to the writings of Kant and Mill, came to light on a massive scale in the 20 th century.
The international human rights documents and reverence towards legislative authority
established a closer connection between reproduction and notions of privacy, liberty, autonomy,
dignity25 amongst others. The UDHR laid foundation of human rights by recognizing the worth
of every human being.26 The UDHR also prompted the courts to move towards a ‘right’ based
examination on aspects concerning private human affairs. This move came to prominence with
another landmark decision of the US Supreme Court in Griswold v. Connecticut27, wherein the
Court struck down a statute that banned the use of ‘any drug, medicinal article or instrument for
the purpose of preventing contraception.’ The Court extended a heightened protection against

24
Michael & Roy, Genetic Control and Procreational Autonomy in Bioethics and Law- Cases, Materials &
Problems, American Casebook Series, West Publishing Company, 1981, p. 400
25
Vicki C. Jackson, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional
Discourse, 65 Montreal Law Review, (2004) p. 15 to 26.
26
Article 1 of the Universal Declaration of Human Rights (UDHR) states that- all human beings are born free and
equal in dignity and rights.
27
381 US 479 (1965)
government interference with certain fundamental rights and liberty interests28. In Griswold, the
Court ruled that a state regulation prohibiting the use of contraception violated an implicit “zone
of privacy” found within the “penumbras” of the Bill of Rights that surrounds “the sacred
precincts of marital bedrooms”29. While the Court has constructed an extensive reading of
fundamental rights, the specific bases on which the Court identifies such rights remain unclear
and the Court differed in several surrounding matters from case to case. For example, in Planned
Parenthood of Southeastern Pennsylvania v. Casey30the Court described due process rights as
those “involving the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy”; thus, “the right to define one’s own concept of
existence, of meaning, of the universe, any of the mystery of human life” was declared to be
“central to the liberty protected by the Fourteenth Amendment.”31

This trend of the US courts in embracing a libertarian view towards the regulation of individual
life and bringing the aspects of procreative process within the constitutional realm marked the
beginning of a new vision in constructing reproductive rights.

Similar and parallel developments were taking place in other parts of the world as the
international and regional conventions had started to gain its momentum and thus propelled the
shaping of international customary consciousness about reproductive rights. The western
articulation of human rights found its way to the public psyche with the adoption of the
Universal Declaration of human rights (UDHR) in 1948, the first international legal document to
delineate human rights. The UDHR for the first time in modern history spelled out basic civil,
political, economic, social and cultural rights that all human beings should enjoy. 32The UDHR
does not mention reproductive rights, it lays down the foundation of the basic principles of
humanity on which the conduct of world civilization be based. All the other instruments have to
comply with the grund-norm that the UDHR sets. This Declaration enumerated treaty obligations

28
Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
29
Griswold, at p. 484–86
30
505 U.S. 833, 846 (1992)
31
Id. at 851.
32
International Human Rights Law, Office of the High Commissioner for Human Rights,
http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx (accessed Oct. 31, 2012).
that were designed to give legal force to the UDHR33. The International Covenant on Civil and
Political Rights (ICCPR) is one such instrument.

The ICCPR in Art.23 recognizes the right to marry and found a family 34. The Human Rights
Committee, in its General Comment on Art 23, stated that ‘the right to found a family implies, in
principle, the possibility to procreate’35. Some commentators have argued that this includes, at
least for different-sex couples, the right to use reproductive technologies, subject to those
prohibitions necessary to protect the rights of others36.

Thus, in this phase a fundamental framework had not only been put in place but a lot of activity
surrounding the framework had begun. The parallel dynamics emerging in the feminist debates
acted further as catalyst towards streamlining normativity in this area.

Phase-III: The Feminist Agenda: The priority of the feminist agenda was the creation of an
adequate space for women’s right and well-being in prior human rights enunciations by
innovating general and specific norms.

The scripting of reproductive rights as a distinct body of human rights law marks a revolutionary
break37 from pre-existing human rights. As the case laws emerging specifically in the U.S. had
regularly marked the public as well as political sphere with its moral overtones, reproductive
rights, very subtly, began to appear on stage as a subset of human rights in the year 1968 with the
Proclamation of Tehran, which endorsed the basic dimensions of the right to procreate and
stated: “Parents have a basic right to decide freely and responsibly on the number and spacing of
their children and a right to adequate education and information in this respect.” This right was
affirmed by the UN General Assembly in the 1974 Declaration on Social Progress and

33
Rebecca Cook et al., Reproductive Health and Human Rights: Integrating Medicine, Ethics and Law, Clarendon
Press, 2003, 148.
34
Article. 23 of ICCPR states that (i) the family is the natural and fundamental group unit of society and is
entitled to protection by society and the state. (ii) The right of men and women of marriageable age to marry
and found a family shall be recognized.
35
UN Human Rights Committee, General Comment No 19: Protection of the Family, the Right to Marriage and
Equality of the Spouses (Art 23), as contained in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/Gen/1/Rev.8 (8 May 2012) 188.
36
Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 413–14. See also
Stephen P Marks, Tying Prometheus Down: The International Law of Human Genetic Manipulation, (2002) 3
Chicago Journal of International Lawp. 115-133.
37
Baxi, Gender and Reproductive Rights in India: Problems and Prospects for the New Millenium, UNFPA, p.3
Development which went on to declare “The family as a basic unit of society and the natural
environment for the growth and well-being of its members, particularly children and youth,
should be assisted and protected so that it may fully assume its responsibilities within the
community.” The 1975 UN International Women’s Year Conference echoed the Proclamation of
Tehran. However, it is to be noted that till now, the term ‘reproductive rights’ has not been
specifically defined. It is rather taken as a conglomeration of various rights that can come under
its purview. Number of regional conventions and protocols took up the task of enlisting what all
could be crafted under the broad penumbra of reproductive rights.38 In this agenda of formulating
reproductive rights, the feminists took two almost parallel routes: one, in case of pre-existing
human rights emanations, the feminists carved an integral space by embracing the already
existing human rights into the women’s rights fold and innovating general and specific norms in
the main text of the document39 and two, by invoking the presence in early human rights texts by
deducing logic and affirmatively interpreting the language of reproductive rights 40. They
converted an absence into a presence by reading in the more established categories of right to
life, immunity from torture or degrading treatment, the rights to the highest attainable standards
of health, education, information, autonomy and self determination, privacy, and dignity.41 So
basically, the two pronged route helped in creating newer room for inculcating specific norms as
well as connecting the already existing superior norms to the feminist discourse. In the 1980s,
the discourse on reproductive rights had thus begun to formulate itself as a major agenda in the
feminist movements and featured as a starred subject in most of the feminist deliberations. These
normative developments, coupled with the phenomenal breakthroughs in the discipline of
bioethics led to the creation of wide space for the reproductive question to base itself on.

Vibrant women’s health movements in many countries, as well as active international

networking amongst them had a visible impact on national and international policy making on
women’s health. Following the International Conference on Population and Development

38
Art. 23 (1) (b) International Convention on the Protection and Promotion of the Rights and Dignity of Persons
with Disabilities entails the right to reproductive health and education and, on a regional level, Art. 14 Protocol
to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’)
expressly articulates women’s reproductive rights as human rights.
39
See Baxi, Supra note 36.
40
Ibid.
41
Id. at p. 5
(ICPD),42at Cairo, the definition of reproductive health moved out of the confines of the genitals.
The language and formulation from Tehran to Cairo had matured up immensely wherein the
latter asserted that the governments have the responsibility to meet individuals’ reproductive
needs, rather than demographic targets.43 This wider perspective, adopted by both policy makers
and non-government organizations (NGOs), has led to a more holistic view of women’s
reproductive health. In fact, Cairo Program remains the first policy document to define
reproductive health, stating: Reproductive health is a state of complete physical, mental and
social well-being and not merely the absence of disease or infirmity, in all matters relating to the
reproductive system and its functions and processes. Reproductive health therefore implies that
people….have the capability to reproduce and the freedom to decide if, when and how to do so.
Implicit in this last condition are the right of men and women to be informed about and to have
access to safe, effective, affordable and acceptable methods of family planning of their choice, as
well as other methods for regulation of fertility which are not against the law, and the right to
access the appropriate health care services.

With a wide representation of countries, it was adopted by 184 UN member states. 44

Nevertheless, many Latin American and Islamic States made formal reservations to the program,
in particular, to its concept of reproductive rights and sexual freedom, to its treatment of
abortion, and to its potential incompatibility with Islamic Law.

Till now however, the notion of reproductive rights had emerged as a bundle of interests granting
latitude to women in certain activities with respect to reproduction, it was in 1995 at the Beijing
Platform for Action that cemented an all-encompassing commitment towards sexual freedom and
reproductive self-determination in a more vehement tone. 45 It brought forth the revered virtues
42
International Conference on Population and Development, held in Cairo, 1994 is a significant step towards
streamlining the population concerns especially of the third world countries.
43
See Supra note 36 at p.6
44
The ICPD did not address the far-reaching implications of the HIV/AIDS epidemic. In 1999, recommendations
at the ICPD+5 were expanded to include commitment to AIDS education, research, and prevention of mother-
to-child transmission, as well as to the development of vaccines.
45
CEDAW, popularly known as the Women’s Convention was all-encompassing in its approach. Specific rights
enshrined in this Convention are: Art. 10(h) Access to education, information and advise on family planning;
Art. 11(1)(f) Workplace safety, safeguarding the reproductive function; Art. 11 Adequate provision of health
care, maternity leave, special protection of women from harmful conditions of work during pregnancy, child
care and related assistance to working parents; Art.12 Elimination of gender based discrimination in provision
of health care, including family planning, adequate nutrition, and “free services where necessary”; Art. 14
Special provision for health care to rural women; Art.16 Reproductive Autonomy described as the right of men
like right to life, liberty and equality for women for all purposes including reproductive decision-
making and exercising “choice” in all matters affecting her being.

Phase-IV: Non-Coital Reproduction

Although the question of reproductive rights for women have developed within the space of
health, human and women’s rights the question of reproduction owes its significance to not only
the core act of procreating but also the branching dimensions that the rights seek to address. In
matters of non-coital reproduction the texts of the international conventions have generally been
silent but the norms that they have articulated upon have created a substantial margin of
appreciation in terms of formulating the questions on reproductive choice and situations where
the right can come into play. The outcomes of these international human rights rhetoric have
been creation of breathing space for the possibility of newer and emerging rights. Hence, in the
dynamics of reproduction there could be multi-dimensional questions involving individual and
familial decisions, like46:

(i) Having children at all.

(ii) Having a certain number of children, possibly at certain preferred times.
(iii) Having children of a certain sex, possibly in a certain order.
(iv) Having children some of whose characteristics (other than sex- see point (iii) above) are
planned. The “planning” may encompass different degrees of precision (considering the
advances in genetics)
(v) Having children with the aid of certain technologies- fertility drugs, IVF etc.
(vi) Reproducing asexually
(vii) Sterilization (with or without the consent of the spouse, if any)
(viii) Abortion

The list is not exhaustive and the language of concerns that the conventions brought forth is
broad enough to embrace other emerging aspects within its fold. However, the problematic
aspect in assessing these different enterprises revolves around separate cases involving different

and women to decide freely and responsibly on the number and spacing of children and access to information
and means to exercise these rights.
46
Shpiro & Spece, Genetic Control & Procreational Autonomy, Bioethics and Law: Cases, Materials and
Problems, West Publishing Company, p. 392-93.
reproductive circumstances and the aspect of a situational validity. For example questions
pertaining to the prospective parents whether they are married, single, belonging to the same-sex
etc. in cases of third party procreation like surrogacy, or issues concerning procreation by women
of who have crossed their reproductive age etc. can under all these situations technology could
be resorted to as a matter of right? What could be the extent of such combinations that could be
regulated within the phenomena of a “right”?

The countries the world over are grappling with the challenges that these technologies have
posed and therefore confusing set of laws and uncertain judicial outcomes have emerged adding
further to the unevenness in the legal spectrum. These and many other compounding questions
have started to emerge with no exact answer and definite boundaries, so it becomes essential to
draw linkages from the corollary arguments and deduce justifications for interfering with or
granting of such a right. Therefore, a discussion on the boundaries in cases of non-coital
reproduction is called for to understand the emerging questions within its fold.

 REPRODUCTION & THE POLICY IN INDIA: A BRIEF NOTE

It is also necessary to briefly examine the policy of the state with respect to reproduction in
India. The regime in India with respect to reproduction seems overtly a feminist issue but
covertly it remains a matter of policy engagements. The legal enactments in India concerning the
reproductive behaviour have all tried to address the dominant policy questions that the state has
been grappling with. Sections 312 to 318 of the Indian Penal Code (IPC), deal with the varying
dimensions of miscarriage and lays down strict grounds for preventing a live birth. The Medical
Termination of Pregnancy (MTP) Act, was enacted in 1971 and amended in 1975 empowers a
woman with an option of abortion in case of a contraception failure, those pregnancies that
endanger the health of the mother or the foetus and all pregnancies resulting from rape- can be
terminated legally.47 Technically therefore, any woman in India can have an abortion above the
age of 18, stating either contraception failure or stating mental trauma (if the pregnancy is
allowed to continue). She does not need anybody’s consent but her own and her doctor’s and on
the face of it, this looks like a pro-choice, but the practical move behind granting the woman
rights are besides others, based on the concerns of the population control lobby.

47
Ved Kumari, Gender Analysis of the Indian Penal Code, in Engendering Law: Essays in Honour of Lotika
Sarkar, (ed.) Amita Dhanda & Archana Parashar, Eastern Book Company, 1999, p. 139-160
The agenda of population control had seen its peak with the launch of government backed
‘compulsory sterilization’ program during the emergency period which received sharp criticism
from the proponents of democratic rights. India’s state of emergency between 1975 and 1977
included a family planning initiative that began in April 1976 through which the government
hoped to lower India’s ever increasing population. This program used propaganda and monetary
incentives to convince citizens to get sterilized 48. People who get sterilized would get land,
housing, money or loans. Because of this program thousands of men received vasectomies and
even more women received tubal ligations 49. However, the program focussed more on sterilizing
women than men. Despite the fact that sterilizing men is a more simple procedure, the
government still chose to focus on sterilizing women instead 50. The then government received
severe flak for the failed program and the civil rights activists called it a gross violation of
freedom of expression and personal liberties. A strong backlash against any initiative associated
with family planning followed the highly controversial program, which continues into the 21 st
century. The Andhra Pradesh High Court in B.K. Parathasarathi & Others v. Government of
A.P. & Others51 upheld the constitutional validity of a statute that visualized a disqualification of
persons holding an elected office due to the birth of an additional child. The court although
upheld the fundamental right to procreate and endorsed all the American judgments as falling
within the zone of privacy, it clearly stated that such a statute in the present matter does not
violate any fundamental right of an individual.52 It is only a right arising out of a statute which is
aimed at encouraging birth control measures more particularly in the context of persons who are
seeking to hold public offices as representatives of people. Later, in the Apex Court judgment in
Javed & Others v. State of Haryana & Others 53, the government led family planning program
and the 2-child norm was protected and described as a scheme for social welfare and
disqualifying a person from contesting elections based on such a program is not a violation of the

48
Relying on Hard and Soft sells India pushes sterilization, New York Times, June 22, 2011. Retreived from
http://www.en.wikipedia.org/compulsory_sterilization; April 9, 2013
49
For Sterilization Target is Women, New York Times, November 7, 2003. Retrieved from
http://www.en.wikipedia.org/compulsory_sterilization; April 9, 2013
50
The Indira Enigma, Frontline, September 1996, Retrieved from
http://www.en.wikipedia.org/compulsory_sterilization; April 9, 2013
51
AIR 2000 AP 156
52
Id at p. 159
53
(2003) 8 SCC 369; AIR 2003 SC 3057
fundamental right of privacy to a person. The right to contest election is neither fundamental nor
common law right hence disqualifying on a ground that aims to push the social welfare program
of the government is intra vires the Constitution.

The fact that India has been plagued by the disturbing facets of overpopulation demands, the
legality of abortion seems also like a practical solution. The composite nature of the Indian society
is such that a significant right like the one introduced in the MTP Act comes with its patriarchy
loaded illegal aftermaths. With the introduction of a technology like the Ultra-sonography in the
Indian market, coupled with a comparatively relaxed regime on medical termination of pregnancy,
exposed another dimension of the Indian society in the form of sex-selective abortions or more
commonly known as female infanticide, when many families urge the mother to go for abortion,
when they get the information through illegal scans that the ensuing baby is a girl child. The
technology unleashed such unprecedented form of exploitation that resulted in converting the
hidden practice of infanticide to a more mainstream phenomenon of female foeticide- resulting in
much lesser guilt on the perpetrator, was more convenient and thus became extremely popular.

Taking a note of the present situation and the heightened gap in the sex ratio, the government
enacted the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
for the precise purpose stated in the title of the statute. The legislation endeavored to monitor the
clinics and Nursing Homes by registering them and creating appropriate authorities to overlook
the functioning of these clinics and medical centers. The Act came into force from 1 st January
1996. However, due to the apparent apathy, lack of implementation and blatant violation of the
provisions of the Act, a writ petition was filed in the Supreme Court of India. 54 The Apex Court,
realizing the extent to which the PNDT Act remain unimplemented, issued directions to the
Central and State government to rise from its slumber and take appropriate actions with all
vigour and zeal55 for the proper implementation of the Act.

This climate makes the blooming of the surrogacy industry in India all the more contrasting
considering the nature of technology, which is in the nature of propelling procreation rather than
stopping or terminating it.
54
The petitioners in the case were Centre for Enquiry into Health and Allied Themes (CEHAT), Mahila
Sarvangeen Utkarsh Mandal (MASUM) and Dr. Sabu George (a person having experience and technical
knowledge in the field).
55
Order para 2.
Amidst the overtly settled state policy on reproduction, the development of the IVF technology
was not envisaged in its initial years as requiring regulation. Way back in the 1980s when IVF
technology had started to gain ground in India, the governments’ stand on the reproduction
policies was concerned about population control and the institutionalized 2-child norm was
promoted vehemently. The ARTs predominantly are technologies that propel procreation unlike
the stance of the government back then. Therefore, rather than launching and promoting ARTs at
a nationalized level, the Indian government remained largely unfazed and non-participative in
the research in this area.56

The first set of guidelines came up in 2005 which was later modified into the first full-length
draft bill in 2008. The Law Commission of India in its 228 th Report also acknowledged the
industry proportions that ARTs have achieved and proposed to draw up a legal agenda for the
thriving fertility industry including surrogacy57.

This (2008) bill endeavored by and large, to regulate the thriving ART industry by bringing it
under the aegis of the government through the establishment of regulatory bodies. The drafting
of the 2008 Bill and the Law Commission’s recommendation came up a little earlier
chronologically followed subsequently by the Baby Manji58 ruling of the Apex Court relating to
surrogacy. The impact of this ruling could thus be seen in the tone of the Bill in its subsequent
drafts. The issue relating to the absence of a regulation was highlighted in the case but the Court
accepted the existing phenomenon of surrogacy and surrogacy contracts in India.

The Bill also rejects the recommendation of the Law Commission in its Report No. 228, titled
“Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights
and Obligations of Parties to a Surrogacy” which besides highlighting the need for a legislation
in this area, had suggested a ban59on commercial surrogacy while accepting altruistic surrogacy

56
Kaur and Allahabadia, Accreditation, Supervision, and Regulation of ART Clinics in India- A Distant
Dream?,Journal of Assisted Reproduction and Genetics, Vol. 20, No. 7, July 2003.
57
Jwala D Thapa, Analysing the status of the surrogate mother under The Assisted Reproductive Technologies
(Regulation) Bill, 2010, NUJS Working Paper Series NUJS/WP/2012/01
58
Baby Manji and Another v. Union of India, AIR 2009 SC 84
59
Emphasis Supplied by the Author
in India as “the need of the hour”60 and thus formulating a pragmatic approach 61to harmonize
reality”62.
In 2010, the Ministry of Health & Family Welfare of the government of India put forward a bill
meant to legally codify the use of assisted reproductive technologies (ARTs)63.

The Bill, envisages, creation of ART Clinics to provide for specialized treatment. It also
enumerates the rights, liabilities and obligations of the service providers, patients seeking such
services as well as gamete donors and surrogates. Basically, it provides for a broad framework
and delineates the functional base of the ARTs-Surrogacy in India. The State once again has
vocalized its strong views on Surrogacy and in August 2016 put forth its approval on its latest
stand on commercial surrogacy, proposing a complete ban on it.

ARTs and Collaborative Reproduction: Drawing distinctions with other subjects of

Reproductive Discourse

Although while examining collaborative procreation in the technological context continuous

parallels with the other on-going discourses on reproduction is inevitable due to its placing
within the same thematic territory, it is also important to draw the basic differences between
discourses on abortion, contraception, sterilization with that of Assisted Reproduction. This
exercise will help in placing the normative discussion on ARTs and collaborative procreation in
context. For the sake of brevity, the researcher categorizes the first set of practices as Type- 1 64
and the second set as Type- 265.

60
Law Commission of India Report No. 228, Para. 4.1; available at
http://lawcommissionofindia.nic.in/reports/report228.pdf, [last visited 19 November 2012]
61
Ibid.
62
Dr. Justice A.R. Lakshmanan, Surrogacy, Lawyers’ Update, January 2011,
http://www.lawyersupdate.co.in/LU/4/1154.asp, (last visited 01 December 2012)
The retired Judge, who was the Chairman of the Law Commission of India at the time of submission of the Report
No. 228, titled “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As Well As Rights and
Obligations of Parties to a Surrogacy” in justification of this stand of the Bill wrote: “...Thus, the report of the Law
Commission tried to harmonize reality since Surrogacy arrangements were already going on in large numbers and it
was expressed that checks, balances and safeguards be provided through legislation to curb malpractices and
exploitation of commercial Surrogacy.”
63
Ministry of Health & Family Welfare, Government of India, The Assisted Reproductive Technologies
(Regulation) Bill, New Delhi, (2010).
64
The researcher, for the sake of brevity places aspects of Abortion, Contraception and Sterilization in the
category of Type-1 Cases whereas Type-2 cases reflect the category of cases within the ARTs.
65
Ibid.
The vital differences between the discourses on Type- 1 and Type- 2 are noted as follows:

Outcome of the Act:The Type-1 is anti-procreation, which either terminates a pregnancy or

‘stalls’ birth either temporarily (contraception) or permanently (voluntary or involuntary
sterilization) and thereby indicate the process of ‘ceasing’ or ‘obstructing’ birth whereas Type-2
functions in the zone of ‘causing’ or ‘propelling’ birth. Type 1 results in ‘termination or
prevention’ and type-2 results in ‘bringing about conception’ followed mostly by birth. This vital
difference in the outcome of between Type-1 and Type-2 makes ARTs a distinct genre within the
otherwise larger scheme of things in reproductive policy making and requires a fresh perspective
to approach the subject theoretically. E.g. if within the dialectics of rights, contraception
guaranteed a right not to procreate or simply gave the latitude to an individual about when to
procreate..? then whether within the ARTs…the same could be syllogistically deduced and
extended to a right to procreate…albeit non-coitally? In other words, if the right includes the
right not to procreate then it must include the right to procreate as well.

Technological Intervention66: Although in all forms of cases there has been some use of
technology (howsoever miniscule that might be) like the contraception pill or the sterilization
process etc. but technological intervention in the Type-2 cases is what makes them worthy of a
specialized consideration. External handling of gametes, hormonal injections, laparoscopy,
blastocyst, genetic implants etc. are such superlative techniques that not only assist in
reproduction but also cause for a lot of bodily intervention in the women’s body thereby creating
newer avenues for a discussion on women’s rights. The technology has enabled a separation
between the gametes from its source and generated a possibility of its implantation into another
human body. It creates a specialized set of personnel to operate the technology. The notion of
individual autonomy in the present context therefore becomes an all new feature and thereby
calls for an understanding of the bodily autonomy of the patient as well as the third party- the
surrogate mother.

Precision in Design: Planning of pregnancy with ‘number and spacing’ of children has been the
norm with the Type-1 cases, which also finds clear mention in the international conventions. In
cases falling within the Type-2 category, planning can range from choosing the genetic make-up
of the child to its sex, colour of the eyes, skin etc. The proportion and precision of such
66
For a discussion on the question of technology within the human rights perspective see supra note 48.
designing brings in with it a whole new jurisprudence of technological impact on human rights
and lives. The amount of control over the reproductive process is much higher with the option of
such meticulous planning and thereby pushes the discourse on human reproduction to newer
territory.

Collaboration: Procreation traditionally refers to ‘exclusivity’ between the owners/contributors

of the gametes i.e. the parents. ARTs tend to loosen up this exclusivity and bring within its ambit
external players who supply either their wombs or genetic material to bring a child to life.
Pregnancies in Type 2 cases require assistance of essentially two categories of people- one who
offer their bodily services for achieving pregnancy and second medical personnel who are
experts in handling the technology and are thereby, especially in a country like India, not merely
passive participants but due to their technical expertise are also actively involved in influencing
the decisions of the individuals seeking treatment. It also requires collaboration of other third
parties like surrogates and gamete donors.

Commerce: This distinction is an off-shoot of the preceding factor whereby monetary

considerations play a vital role in distinguishing the accessibility of Type-2 cases in comparison
to the Type-1. The element of commerce sets ARTs apart wherein achieving pregnancy becomes
a matter of financial investment and is almost privatized in a strict sense.

In order to thereby carve a functional framework for the ARTs, it is significant to briefly
understand the distinct as well as unique aspects that mark this kind of reproduction:

First is the meaning of reproduction when conception is externalized and the genetic, gestational,
and rearing aspects of reproduction are isolated or recombined in new ways. The question that
arises here is determining the extent of procreative liberty and autonomy of individuals and
couples to establish the right to acquire children non-coitally, including the right to separate and
recombine the various factors of reproduction as necessary to produce a child.

A second set of issues concerns the degree of harm or welfare to the child born as a result of such
ARTs. This aspect goes practically unattended under the garb of procreational autonomy as the
rights of the child born to parents of advanced age, posthumous children, or children born out of
collaboration with the third parties bring its own jurisprudential baggage. Along with this, the
questions about autonomous decision making of the parents to choose off-spring characteristics
like colour of skin etc. and the subjective violation of interests of resultant offspring. The
consolidation of the child rights becomes very significant in developing a justified framework for
the ARTs.

Closely linked to the above issue is the nature of family that evolved out of such arrangements.
With the involvement of the third parties providing eggs, sperm, embryos or even gestation, the
social and cultural forces are drastically changing the makeup of the family does non-coital
collaborative reproduction threaten further change that justifies regulation?

A yet another unique issue concerns the impact of non-coital birth technology on the role of
women and the relation of both men and women to the natural order. This raises very hard
jurisprudential questions concerning the age-old identification of women with gestation and
rearing as well as exploitative potential for the poor women willing to act as surrogates. The
vulnerability factor although is common across the spectrum affecting both intending as well as
surrogate mother in varying degrees. In any case, they enhance the possibility of technologizing
reproduction in ways that risk children from their parents and both women and men from the
natural order.

Against this background principles of procreational autonomy get an altogether new dimension
and thereby needs a closer scrutiny from the lens of ARTs and surrogacy.

***