This article is written by Minhas Joshi from SVKM’S Kirit P Mehta School of Law, Mumbai. This is an exhaustive article which deals with the legality of In-Vitro fertilization, the ethical and legal question regarding IVF and the current regulation regarding IVF in India.
“Neither flesh of my flesh, nor bone of my bone still miraculously my own”
The first baby Louise Brown was born in 1978 through In-Vitro fertilization and since then IVF treatment has benefited millions of people who experience childlessness. According to an estimate, there are around 5 million IVF infants in the world. Hower scientific advancement of IVF has also brought legal and social issues with it. The research and literature regarding In-vitro fertilization have expanded to cover the legal and ethical dimensions of IVF but it is still not sufficient. IVF is legal in India but there is still no specific law regarding IVF. In the last 20 years, IVF treatment has gained a lot of public attention and thus it needs to be properly scrutinised when it comes to the legal and ethical aspect.
What is IVF ?
In-vitro fertilization is an advanced type of fertility treatment in which fertilization takes place outside of the body that is used to treat infertility where other types of Assisted Reproductive technology like surrogacy, etc failed. It can be described as a process where a woman’s egg and man’s sperm is combined in a laboratory. A woman has to undergo many IVF treatments before she gets pregnant.
Who is recommended to have IVF?
IVF is suitable for people who are suffering from infertility. Women who have damaged, blocked or missing fallopian tubes are recommended to have IVF. Since it bypasses the fallopian tube completely it is a good option for them. Women suffering from disorders like Polycystic ovary syndrome or endometriosis are also recommended to have IVF. Even when a male has infertility disorders like less sperm count, no sperm count, low sperm count, IVF is recommended in these situations as well.
How far is IVF safe?
IVF is generally considered to be a safe treatment but there are some risks involved in having an IVF treatment. As IVF is a medical treatment, it comes with a small chance of side effects and the most severe of them could be the Ovarian hyperstimulation syndrome. This is caused when too many eggs develop in the ovaries.IVF can also cause multiple pregnancies as more than one embryo is put back in the uterus. According to a report, around 30% of IVF can result in multiple pregnancies. IVF also has a higher chance of causing an ectopic pregnancy.
Legal and Ethical issues
There is a debate on IVF due to many ethical value systems which questions IVF treatment. As we know how advantageous IVF is but there are some deep ethical and Legal questions concerned with IVF like:
Defining the ethically wrong done to Pre Embryo
With the growing success of IVF, one thing is never mentioned that is what happens to all those extra embryos. As many embryos are involved to improve the chance of pregnancy but only one embryo is used at a time, due to this those embryos which are not needed are frozen for research work. Also, these frozen embryos which are not transferred to the uterus are used for research or else destroyed. If an embryo is considered as an individual then it is unethical to destroy it. It is similar to intentionally killing an individual.
As an embryo is a human being and a human being should be recognised as an individual. The protection of an individual’s life should be from its conception, from its first moment. But some people argue that embryos are too primitive to be given rights. Thus, it is ethical to use the embryos for research and elimination which satisfies the interests of humans. Unfortunately, discussion on the rights of embryos does not give an answer to the issue that is if the destruction of embryos is ethical or not.
Defects in Offspring
As the success of IVF depends on the result of many stages of the process, throughout the process, the main concern is to monitor the safety of the treatment as the treatment can cause many defects and disorders. The children born of IVF are more likely to be shorter than the normal children or even have low weight. It can also cause multiple pregnancies. It is reasonable to reject the use of a treatment which can cause side effects and many genetic disorders. So in such cases, can the parents sue the treatment provider? Should we proceed with technology which can cause defects? No, we should provide insurance to the parents so that if there is a defect they can treat it.
Commercialization of IVF
IVF treatment treats an embryo as a commodity because its very nature is buying and selling. Parents are treating the child through IVF as a commodity as the offspring can be modified through IVF. We don’t have a right to disturb the natural process to achieve the results through artificial means.
Wrong done to a Couple
As IVF success depends on the number of embryos transferred in the uterus. Sometimes this process can cause multiple pregnancies. Multiple pregnancies are a threat to the mother as it can cause bleeding in the uterus and high blood pressure. So whether the wrong done by IVF can be ignored due to its advantages.
The case of Frozen Embryos
Supernumerary embryos are the by-product of the IVF. The embryos are frozen for next time when the couple wants another child. However, not every embryo is replaced and not every couple conveys what should be done with the remaining embryos. This has led to the creation of an excessive number of embryos which are stored in fertility labs after 10 years for the research. There are many ethical questions regarding Frozen embryos that are: what is the fate of the frozen embryos if the couple is dead? Who will have the ownership of the frozen embryos if there is a divorce? Also, there has been a concern regarding the time for which the embryos are frozen and then transferred as this can have detrimental side effects on the fetus.
Rights of children born out of IVF
The protection of the rights of a child born through IVF is important. Different countries have different laws like in India the Union Government approved Assisted Reproductive Technology (ART) Regulation Bill 2020 allows the child born of IVF to enjoy all the rights as a natural biological child to protect the child from exploitation. The bill also made it mandatory to conduct tests to identify the genetic defects in the embryos. Also, India recognises the relationship by blood (adoption included) and IVF does not pose any question on the blood relationship and the question of paternity of the offspring.
Success rates of IVF
There are a number of factors on which the success of IVF depends like the quality of eggs, the cause of infertility, the quality of the semen, at what age the treatment is going to be done as the older the woman,the fewer her genetically normal eggs would respond to the treatment. The success rate of the IVF also depends on the type of treatment received like how the women’s own eggs are used, the use of donor eggs. In India, the success rate of IVF is 30% to 35% and for young women, it is 40%.
According to the 228th Law Commission of India report, in 2009 the Assistive reproductive technology industry was recognised as a 25000 crore gold pot. Although in India we do not have a specific law to regulate IVF, each state has come with its own approach to regulate it. IVF in India is regulated by the Indian Council of Medical Research. There are some guidelines which are issued by Indian Council of Medical Research to regulate In-vitro fertilization like the clinic should not disclose any confidential information of the donor and the clients except in the cases that involve court order. If the person is under the age of 21 the gamete presented should not be used by the clinic. The child born through IVF shall be presumed as the legitimate child of the parents as it is done with the proper consent of the parents. The couple must be given mandatory counselling before the procedure. Human embryos cannot be placed in a non-human body and all the research on embryos should be done after taking consent from the Institutional ethical committee.
To make a specific law relating to IVF, the Central Government approved the Assisted Reproductive Technology Regulation Bill 2020. It can be a path-breaking bill for the women in the country. According to the bill, the government will form an apex body which will be known as “NATIONAL BOARD” which will regulate IVF clinics across the country. This board will make a code of conduct to be observed by the employees working at the clinics and will decide the minimum standards of work and working environment to be maintained by the clinics. The bill also proposes to ban the sale of human embryos. Those involved in trafficking of human embryos shall be fined 10 lakh rupees for the first time and for the second time the person could be imprisoned for 12 years. This bill is the best chance to eliminate exploitation in this field.
Some of the risks and challenges of IVF are:
One of the challenges of IVF is reprogenetics. As there is an increase in the scientific knowledge of genomics it can give access to our personal genetic information. People in the future will start considering reprogenetics alongside IVF as it will allow them to edit the DNA of embryos according to them before transferring it into a uterus. It will help them to influence the particular characteristics of an embryo. Initially, it might help in preventing genetic disorders but it can be used in another way. It can create discrimination and division in society.
IVF treatments are very costly; these treatments are becoming a financial risk for many people. The cost of IVF treatment in India is around 1.5 lakhs to 2.5 lakhs and this cost can be a limiting factor for many couples who wanted to opt for this treatment. With the success rate around 40%, there should be insurance for the couple opting for this treatment.But insurance companies fail to provide insurance on this treatment as the insurance only covers the aftermath, not preplanning. The insurance covers illness and fertility treatments are not an illness.
Some suggestion regarding the challenges faced by IVF are:
- Insurance cover should be provided to those who opt for this treatment as these treatments are costly and can cause a financial burden on the couple. Paying out of pockets for many couples is not a viable option as the success rate of IVF is only 30 to 40%.
- The state should ensure the proper way to use the frozen embryos as it is unethical to destroy the embryos as the science also considers embryos as an individual and also the state should set a time limit for the use of frozen embryos.
- An intervention should be there when it comes to reprogenetics in order to accept them legally. Intervention is important for the welfare of society and for future generations as reprogenetics can create divide and division in the society.
- Commercialisation and trafficking of the embryos should be banned and proper guidelines should be made regarding this.
Around 10% of people suffer from infertility and IVF is a technique through which people who were not able to experience parenthood are experiencing parenthood. As we know it is legal and a good option, it is essential to have a specific law regarding it. The first priority of the government should be to pass the Assisted Reproductive Technology Regulation Bill. This bill can bring positive impacts on reproductive rights and choice of women in India. As we know there are many ethical and legal questions regarding the implementation of IVF we cannot solve all those ethical and legal questions because those questions differ from society to society but this bill can be treated as a hallmark to solve such questions related to IVF. As the use of IVF treatment is increasing, creating a specific law IVF will have a clear way to bloom in India.
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