It was in the year 1978, India’s first IVF baby (in
vitro fertilisation) was born. In the past 35 years, the Assisted Reproductive
Technology (ART) has developed into such a stage, where a single child can lay
claim upon five persons as his parents…
It is possible today that a child can be constructed
at the wish and expenses of two consenting adults (Commissioned Mother and the
Father) with an egg donated by a woman (Genetic Mother), fertilised with that
of a donor’s sperm (Genetic Father) and the embryo is grown in the womb of a
third woman (Surrogate Mother).
Now the question is whose property the child would
inherit as a natural heir and which personal law to be followed, if those
parents belong to different religion.
In order to avoid confusion, let us examine a simple
case of a child born to a Hindu couple with the sperm, donated by a stranger.
Except consenting to the artificial insemination, the Commissioned Father has
no connection to the child, unless he adopts the child under the provisions of
the Hindu Adoptions and Maintenance Act’1956 as if the child is the one whose
parentage is not known.
If no adoption takes place, the child cannot be a heir
to the Commissioned Father in accordance to the law of succession, governing
Hindus. On the other hand the child, if able to trace the biological father can
have a claim to his properties as his son! This may send shivers down the spine
of sperm donors. It was only two years back, a South Indian couples made it to
the headlines of the Newspapers, seeking donors who are tall, fair and IIT
graduates. How interesting it would be, if any future Nadella Satya, donating
sperm in his college days ending up in a lawsuit from his biological son from a
non-descript town in India!
The Law Commission of India in its Report No.228,
though addresses some of the issues arising out of surrogacy, still falls short
of coming with any clear solution to this vexed issue of succession.
The Assisted Reproductive Technologies (Regulation) Bill
-2010 is yet to take the shape of an Act. Its provision under Section 35 (1) “A child born to a married couple through the
use of assisted reproductive technology shall be presumed to be the legitimate
child of the couple, having been born in wedlock and with the consent of both
spouses, and shall have identical legal rights as a legitimate child born
through sexual intercourse” may be an answer but still, I feel that it is
possible for the child to go behind the biological father, stating that this
legislation runs contrary to principles of the religion, to which he is
subscribed to. The Ahamas and Shastras will once again gain prominence in court
halls searching for an answer to this modern problem; whether it is possible
for the biological father to renounce his rights as father in any other manner
other than the process of adoption, which is long been recognised as an
accepted practice.
The above discussion is only academic as we don’t have
any such legislation till this day and it is doubtful whether this provision
can be given retrospective effect. As on date we have only ‘guidelines’ in the
form of National Guidelines for Accreditation, Supervision and Regulation of
ART Clinics in India, framed by Indian Council of Medical Research (ICMR)
dealing the subject of ART.
The Regulation 3.12.1 reads in the same lines as that
of the draft bill.
“A child born
through ART shall be presumed to be the legitimate child of the couple, having
been born in wedlock and with the consent of both the spouses. Therefore, the
child shall have a legal right to parental support, inheritance, and all other
privileges of a child born to a couple through sexual intercourse”
This being a Regulation will create only a contractual
right but not a statutory right and hence as on date there is no legislation,
except Hindu Succession Act’1956 to deal with this issue. If we go by the
provisions of the Hindu Succession Act, it is still the biological father
(Genetic Father) and not the commissioned one who is the father of the child
for the purpose of inheritance; such statutory rights cannot be taken away by
contract between the parents to the detriment of the child. As for adoption,
there is no presumption and that one has to satisfy the requirements of the
Hindu Adoptions and Maintenance Act and to prove it by persuasive evidence.
The only irresistible conclusion is that it is
advisable for the Commissioned parents of children born through ART, to go for
adoption as if the child whose parentage is not known to them. However the
issue, which is discussed here, is the most simplistic of the kind of issues
that are going to arise in future; but our laws are hopelessly inadequate to
deal those impending disputes.
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