Husband’s consent for ART is crucial

MUMBAI: Holding a 35-yearold woman’s request for her estranged husband to donate his sperm for artificial insemination as a “legitimate, eugenic choice of hers”, a

family court

in Nanded, Maharashtra, has directed the couple to an assisted reproductive technology (ART) expert for “clinical consultation about the prospect and success of the procedure in their case”. The doctor has to submit a confidential report to the court later. The husband’s consent for ART is crucial.


“A key aspect of personal autonomy are reproductive rights, which entail rights to make sexual and reproductive decisions,” the United Nations International Conference on Population and Development had said in its steering 1984 document that first defined the term reproductive health. Family court judge Swati

Chauhan

in Nanded invoked its salutary value in the woman’s case.

The judge observed that the issue of reproductive rights is “emotionally debatable and gender intricate” and can generate various legal and social complications and consequences. The court said it can only hold that woman has a right to reproduce and is entitled to exercise it but acknowledged that law has limitations. The husband’s consent for ART is crucial.

The couple, both professionals, have a minor child. The husband, who is based in Mumbai, had filed for divorce alleging cruelty by her in 2017 and she approached a court in Nanded for restitution.

But while both petitions were pending, she also approached the Nanded family court in 2018 with an application to have another child from him. Her plea, said her lawyer Shivraj Patil, is that since she is 35, her fertile years are limited and she wants a second child to be a sibling to her first and support to her too in her old age.

The husband opposed her plea questioning its permissibility, legality and her intentions. He refused to have any more children with her even through ART. “No spouse can be compelled to have conjugal relations directly or indirectly, without free consent,” his lawyer had argued.

The woman cannot be faulted for her request, said the court. The husband’s consent is crucial though.

The court observed that since both petitions are pending, her plea to have a second child through restoration of conjugal rights cannot be considered. Also, in any case, the judge observed, no court can ever enforce or compel any person to execute an order of restitution.

The judge, though, clarified that in this case “seeking ART procedure is neither in breach of any law nor is violating any social written or unwritten norms. Moreover, the petitioner is ready to incur the full responsibility of the proposed child.” Her assertion to raise the child doesn’t curtail its right to claim maintenance, said the court, holding that the woman’s declaration, thus, is not against public policy. “Reproductive right is closely and directly related to women. But in the patriarchal society in India, majority of women lack decision-making power,” the court observed.


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