While policy makers have deliberated a draft surrogacy law in Parliament in which surrogacy in India will be restricted to infertile Indian married couples only and not include foreigners (unless the foreigner is married to an Indian citizen), child bearing has obtained a new international dimension. Oocyte cryopreservation or freezing of a woman’s eggs is stated to be an option to extend fertility and delay motherhood. Silicon Valley technology giants have offered $20,000 to both full-time and part-time women employees to freeze their eggs and $480 annually to store them in order to enable these women to focus on their careers and delay child bearing.
New age innovationWhile the Ministry of Finance allows ‘human embryos’ frozen in liquid nitrogen in cryogenic jars to be imported subject to a No Objection Certificate from the Indian Council of Medical Research, the National Gamete Donation Trust in U.K. is now the newly formed national organisation for sperm, egg and embryo donation. It encourages ethnic minority backgrounds to choose from a variety of “culturally matched donors” and proposes to “change the face” of sperm donation in Britain.
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What started as a technique for freezing female eggs to enable women with cancer to store eggs prior to chemotherapy has now become a service perquisite. A woman can freeze her eggs to promote her career and climb the corporate ladder by deferring motherhood. In another dimension, posthumous impregnation and creation of babies by assisted and collaborative modern techniques such as in-vitrio fertilisation or cryopreservation of gametes and eggs may evoke strong notions about life, parenthood and immortality. Such posthumous artificial reproduction has given rise to legal issues that current outdated laws cannot address. Banking is no longer associated with just money but with sperms and eggs as well.
A volley of arguments has followed the offers of freezing embryos to postpone motherhood. These range from the risks of tampering with the order of nature, unwarranted interference between a woman and motherhood, subjecting the woman to health risks, expensive time-consuming medical procedures and promising “fertility insurance,” and deferring child birth plans with assured career progression. Now the reality is that overworked professionals who have no time for natural procreation and are temporarily residing in different international locations are conveniently using such techniques since they are physically apart at the time of conception. Families are thus sought to be designed in frozen frames for couples who are career-minded. Invention has overtaken human relationships in this race. Babies are designed and planned like careers, not for joy but for necessity.
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While everybody talks of the rights of the father and mother-to-be, nobody has looked at the rights of the unborn child. Postponing conception for career advancement takes away the rights of an unborn child. Be it a frozen embryo in a cryogenic jar or a frozen sperm or egg in a bank, a human life may be at stake. Besides issues of morality and ethics, there is no focus on the ‘right to life’ of an unborn child. From the perspective of this child, his right to be born cannot be frozen once he is meant to be procreated. For a child to be born and for him to enjoy the company of his young parents needs determination. A child born to parents after 20 years of his frozen conception deprives him of the young companionship of his healthy parents which he would have enjoyed, had he not been consigned to posterity. This angle seems to have been totally ignored so far.
Egg, sperm and embryo banking which were alien concepts will now enter the home, the bedroom and the family and will have to give rise to a new set of laws and rights. The Kerala High Court is already examining a case where the foster mother of a surrogate child has moved court for maternity leave after she became a mother 20 years after marriage. She claims all the rights of a biological mother. Issues may also arise if, after freezing the eggs, the child is not conceived because of medical complications or unsuccessful retrieval of eggs. There is no law which assures and guarantees a woman who has frozen her eggs a healthy child. By offering money for freezing and preserving eggs and bargaining away the joys of a natural process for fast-tracking careers, these corporate organisations are sending out exploitative signals. In the interest of nature, joyful parenting, and the psychological welfare of an unborn child, it may be necessary to enact a law that provides incentives and benefits for surrogates or parents who conceive naturally. Providing leave for fertility treatments, maternity leave for foster mothers, time for child care and adoption benefits may be feasible.
Work places could provide special rooms or play rooms in crèches for children of working mothers. Providing yearly sabbaticals or periods such as dies non, which do not affect career prospects of working women, can further promote timely parenthood without compromising professional rights.
Unless and until a clear legislative policy is enacted, utilisation of female manpower may become a tool in the hands of career launchers who will keep in deep freeze parental joys.
(Anil Malhotra is a practising Chandigarh-based lawyer and is the principal author of International Indians and the Law, 2014 .)