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The Right to Sperm

A previous post, Just a Sperm Donor based on a case that originated in New South Wales but ended up a federal case, has so far attracted one comment from the land far far away.

Does that deserve to be won in a court of law at the high court?

Even though the girl was the result of her father’s original sperm, and not from her friend’s sperm?

Here is another interesting case from Nanded in India that has a basis in ‘Human Rights’ that we might be interested in.

The order (?decision) was passed by Judge Swati Chauhan of the Nanded Family Court last week. The order reads,

“…right to reproduce is a very intricate feminine right emanating from woman’s basic human right. Not allowing a fertile woman to procreate is like compelling her to sterilise. To curb or to curtail reproductive right may have subtle and devastating demographic outcome.”

Am I detecting a concern on behalf of Mother Nature, that interfering with this women’s desire to reproduce will upset the balance of nature?

What will make your eyes water is the rest of the story. (This couple are both doctors).

This case revolves around a separated couple with one child and a current case before the court. A separate case requests the court to consider access at least if not a degree of ownership over her estranged husband’s sperm. It draws on various other international cases to make a decision.

Case background

The petitioner wife pleaded for conception through restitution of marriage under Section 9 of The Hindu Marriage Act, 1955. She prayed for procreation of another child from the respondent husband either through restoration of conjugal rights or in the alternative through In-vitro fertilisation (IVF). In a plea made through Advocate Shivraj Patil, she claimed that her fertility and strength to bear and rear a child will decline with age. The doctor couple is caught in a matrimonial conflict. They presently have a seven-year-old child, who is in the custody of his mother.

The respondent husband, in 2017, filed a separate petition in another court seeking a divorce on grounds of cruelty under Section 13 (1) (i-a) of the Hindu Marriage Act. The wife initiated a criminal case under Section 498A of the Indian Penal Code against the husband. She had earlier also filed a petition under Section 125 of the Criminal Procedure Code (CrPC), claiming maintenance for herself and her son.

However, in light of the latest plea in the Nanded court, the wife undertook to withdraw the criminal case if the estranged husband agrees to the ART procedure. She also asserted that she would take care of the maintenance of the proposed child herself.

Arguments

The wife contended that her son may need company and support of a sibling for caring and sharing in  the future.

“If a single child of a single parent on attaining adulthood migrates for career purpose, then the said parent will have to lead an isolated life with no family.”

However, the lawyer of the husband submitted that such an application is not tenable in the eyes of law and should be rejected as it is illusionary and against social norms. He also refused a request to procreate child through IVF.

He submitted that no spouse can be compelled to have conjugal relations directly or indirectly without free consent.

Order

After perusing the submissions, the court held that the plea of petitioner wife to restore conjugal rights in order to have another child from the respondent cannot be considered when matrimonial petitions are pending in other courts. The court held that under no circumstances can it force any spouse to consummate their marriage. It then considered the option put forth by the wife to have a second child through IVF. It also observed that with the invention of new technology in the field of medicine, the conventional method of conjugal union for procreation is becoming obsolete.

Agreeing with the petitioner’s contention about her right to procreate through IVF, the court cited international laws, treaties and judgments of Indian courts.

The Court stated that at the United Nations International Conference on Population and Development held in 1994, it was averred that,

“A key aspect of personal autonomy are reproductive rights, which entail rights to make sexual and reproductive decisions.”

The Nanded court also referred to the judgment in Skinner Vs State of Oklahoma. Ex Rel. Williamson(1942), in which the United States Supreme Court held that marriage and procreation are fundamental to the very existence and survival of the race and that the right to reproduce is one of the basic civil rights of a human being. Judge Chauhan also referred to the Andhra Pradesh High Court judgment in BK Parthasarathi v. Government of Andhra Pradesh (by Justice M B Naik, Jasti Chelameswar) , in which the High Court agreed with the US Supreme Court judgment in Skinner.

Various other judgments relating to the autonomy of a woman over her body were cited by the court to hold that the right to reproduce is a very intricate feminine right emanating from a basic human right. Reproductive choices can be exercised to procreate as well as to refrain from procreating. Unreasonable restrictions should not be placed on a woman’s right to procreate, the court held.

Thus, a request by the petitioner to the respondent to donate his sperm can be said to be a legitimate choice of the petitioner, the court held.

“The petitioner’s request to the respondent to donate his sperms can be said to be a legitimate eugenic choice of petitioner. It is not a complex situation like surrogacy where three or four people are involved as the persons involved are wedded husband and wife.”

It was also held that the consent of the husband is most essential for the same. He can refuse consent, but such refusal without sufficient cause could entail legal consequences including action for cruelty.

“Respondent may refuse for ART by not giving his consent. But, by unreasonable refusal, he may expose himself to the legal and logical consequences which may follow.”

The court can only acknowledge and adjudicate to the extent that the petitioner has the right to reproduce and that she is entitled to exercise it, the order reads.

Hence, in furtherance of the said right, the court directed the couple to head for consultation with a marriage counsellor and fix a meeting with an IVF expert within a month. The IVF expert has to submit a confidential report to the court later.

If suggested by the expert, the petitioner-wife has to bear the expenses of clinical consultation and medical procedure.

The court further rejected the claim of maintenance of the wife, while allowing the claim for maintenance of the minor son at Rs. 12,000 per month

UPDATE 28 JUNE 2019

Reading this you may think this is irrelevant nonsense unrelated to New Zealand. Here’s a perspective.

Going back to the middle of last century where some of us irrelevant entitled old farts come from, this country was in law much more religiously orientated. While divorce was frowned upon a man finding home life untenable or perhaps even a risk to his life could apply for a permanent separation. Mostly the preserve of the well-off as it required some form of upkeep for the family.

Likewise if a man wasn’t living at home a court could order a probation report investigating whether it was reasonable for the husband to be ordered by the court, to return home in fulfillment of his moral obligations.

When you take that into account the difference is a time frame. The 1970s feminist rebellion put a couple of generations between the Indian social situation and our present situation. But I see also, this case goes somewhere we haven’t gone yet.

Taking that into account this more traditional society through these two doctors and a judge just hit a time warp and came out in front us. So, this is not unrelated to us.

From the Feminist perspective this women is an educated professional wanting a second child at age 35. That’s considered medically at the top end of pregnancy before you become a geriatric-pregnancy with additional risks. That certainly stretches out the years that it takes to pass through a generation, but this alone says this women, Hindu or not has got a feminist inclination inherited from the Western World.

As I said above, this is breaking news and I just happened to spot the original story by some stroke of luck. Other outlets have spotted the judges views on Eugenics:

The science of improving a population by controlled breeding to increase the occurrence of desirable heritable characteristics.

We’ve seen this before, when the Nazi machine decided controlled breeding was a good idea also.

Where this case has got to from what I am seeing in this judges thinking is that the sperm produces certain traits and if a women has one child with those traits it is cruel to deny further pregnancies with that same sperm and the ‘child not to be allowed a sibling’.

It’s a separation of the genetic seed from the male carrying it. But also puts a perspective on abortion within a relationship.

I think New Zealand by comparison is more occupied with this gender identity stuff at the moment – I’m not aware of any eugenics cases surfacing here yet – correct me if I am wrong on that.

Watch that space of course.

What do we tell our children or grandchildren about this?

Please add other opinions in the comments

Extract from another source:

The Court stated that at the United Nations International Conference on Population and Development held in 1994, it was averred that,

“A key aspect of personal autonomy are reproductive rights, which entail rights to make sexual and reproductive decisions.”