New reproductive practices gaining prominence

By 2007-08, Anand, a small town in Gujarat, generally famous for its dairy products from Amul, had become well-known for something completely different — surrogacy. The number of clinics providing surrogacy services and the number of foreigners who were keen to avail them were continuously rising.

There being no legislation governing surrogacy, the process soon became murkier as the rights of the child, surrogate mother and that of the parents availing the services, remained unclear. It was only in November, 2016 that a cabinet-approved Bill that regulated surrogacy was introduced in the Lok Sabha. As the modalities of this new law are being debated and challenged, the acceptance of having children through surrogacy is increasing.

However, surrogacy is not the only practice that lawmakers should be pondering about. The science behind reproduction is developing leaps and bounds and the traditional way of producing babies through sex, though predominant, is not the only method any longer. Practices such as artificial insemination by donor (AID) and in-vitro fertilisation (IVF) have existed since long.

Along with these, new practices such as intra-cytoplasmic sperm injection (ICSI) and mitochondrial transplantation (MT) are gaining prominence. The ICSI is a process through which a selected single sperm is injected directly into an egg, generally used when the motile and morphologically normal sperms are less in count.

The MT, on the other hand, is transplantation of healthy mitochondria into cells with diseased mitochondria, at a microscopic scale. In order to prevent genes of mitochondrial diseases from mother to a child, the future baby’s mitochondrial DNA is replaced with that from a healthy donor.

Since the healthy donor is another female whose egg is being used, this practice is casually reported as ‘three people baby’. Another and perhaps the most revolutionary of practices in human reproductive sciences is in-vitro gametogenesis (IVG). The IVG, in simpler terms, is a generation of eggs and sperms from cells derived from body tissues, such as skin cells. This would mean that embryo could be formed without sperms coming from father’s testes and without eggs coming from mother’s ovaries.

This is a complete departure from the way in which we have understood human reproduction till date. In principle, the IVG leads to a possibility, where eggs and sperms are produced from the cells of the same person. Thus negating the need of a person of another gender for reproduction (men would still need a surrogate to carry the embryo) and challenging the traditional idea of sex for producing babies.

The IVG could also allow same-sex parents to conceive with the genetic material of both parents. In cases where individuals have lost fertility due to a medical disease or procedure, such as chemotherapy, IVG could be beneficial as a functioning reproductive system would not be needed for producing eggs or sperms. While IVG in humans is still being experimented and is subject to research, there is a possibility of it being a reality in the near future.

Along with medical complexities, there are various legal and ethical questions surrounding these practices. For example, with the mitochondrial transfer, there is a possibility of an emotional and psychological effect on child’s identity when they are made aware of there being a third person involved in their birth as compared to the accepted two parents. The most important concern is with IVG.

As through IVG, a number of sperms and eggs generated could be easily multiplied manifold, there is a possibility of generating many embryos, and thereby giving an individual/couple the option to choose the ‘best baby’ and probably aborting any embryo which has a hint of disability involved. Further, if the sperm and egg are obtained from the same person, it would, in effect, amount to the closest sort of inbreeding and possibility of creating children closely similar to the parents.

Whether law would allow such forms of reproduction and if so what would be conse­quences of allowing such practices on rights of children born through them? Balancing the desire of childless individuals/couples with the physical and emotional well-being of children born through these practices is essential. For example, there is a possibility that embryos developed through these practices may develop medical complications at later stages of pregnancy.

Abortion laws

Whether the current abortion laws would be amended to make allowance in cases where these practices are involved, requires much deliberation. Further, like in the case of surrogacy, there remains a possibility of parties involved in these practices being exploited. For example, in cases of surrogacy, there have been instances where the surrogate mother was unpaid for her services or the contract was terminated mid-way.

If for these new practices, India becomes a destination for medical tourism, how will the law regulate it? Specifically, in the case of IVG, since embryos can be generated from skin cells, there is also a possibility that skin cells of some person are used without the consent of that person.

In that case, will using skin cells without consent be considered as theft? And who would be considered as the parent of the child born of such skin cells? These are some questions which could be looming in the near future and require experts to search for answers.

The salience of these questions would amplify as soon as people start considering these options for reproduction. The possibility that society will adapt to science is high as there are tangible benefits of these new reproduction practices. The question then will be if we should have laws and policies that govern these practices.

Instead of law playing the catching-up game with science, here is our chance to be futuristic. While for practices like surrogacy, the law and policies are being framed ex-post, this is an opportunity where, as a nation, can we think forward, frame policies ex-ante and be ready for what is coming. While ‘Make in India’ is the BJP government’s mantra for the manufacturing industry, could it also be the mantra for reproductive sciences?

(The writer is a practicing lawyer and a graduate student, University of Oxford)