Your Opinion: Right of a Married but separated Women to bear Child from a Sperm Donor without Husband's Consent

 

A 38-year-old woman in a writ petition before the Hon’ble Supreme Court, challenged a rule of the Assisted Reproductive Technology (Regulation) Act, 2021 which mandated the consent of the husband in case a married woman wanted to go for intrauterine insemination with donor sperm.

The same was considered by the Court and tagged along with a similar petition by an IVF specialist.

The husband of the woman had filed for divorce and yet denied permission to the woman to use donor sperm for undergoing artificial insemination. Section 22(1)(a) and Rule 13(1)(f), when read together, places a restriction on the woman who is married to have obtained the consent of her husband as a prerequisite to undergoing artificial insemination using donor sperm.

The Act per se allows a woman above the age of 21 to undergo artificial insemination, but in case of a married woman the consent of the ‘commissioning couple’ is required. This renders a married woman dependent on the wishes of the husband, which is acceptable if the couple lives together as it should be a mutual decision but in cases like the present matter when divorce proceedings have been initiated, the woman becomes hapless.

Woman Challenges Mandate Of Husband’s Consent For Donor Sperm Insemination

This is what has happened in the present matter, the petitioner is a 38-year-old woman and her husband refused to give his permission despite having filed for divorce. Considering the age of the woman, time is of essence for being able to bear a child. The woman has called the restriction arbitrary and violative of her Right to equality under Article 14 and Right to life and liberty under Article 21.

 

The petition depicts the difficult situation in similar cases-

“This restriction assumes extreme significance in fact situations like that of the petitioner, where she is separated from her husband, who has filed a divorce case against her and is any event neither ready for providing his own sperms or giving his consent for donor sperms, so that the petitioner could opt for intrauterine insemination. The consequence is that despite being desperately desirous for motherhood and despite the technology being available to make her do so, petitioner is prevented by law from becoming a mother.”

“It is pertinent to mention here that although the law mandates that a woman can opt for these IVF procedures till the age of 50, it is common knowledge that pregnancy becomes increasingly difficult with age. The petitioner is already 38 years old. Further, with the heavy backlog in the courts in the country, it is difficult to predict how long a divorce case can take to get finalized, given the triple stage adjudication process.”

 Do these provisions assail the right to make reproductive choices which has been upheld by the Hon’ble Apex Court to form a part of the right to bodily integrity, privacy and personal liberty? The question will be decided by the Hon’ble Apex Court soon.

 

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(With input from news agency language)

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