What if roles are reversed? Debate on court ordering man to give sperm to estranged wife
India

What if roles are reversed? Debate on court ordering man to give sperm to estranged wife

A court in Maharashtra’s Nanded brought up a woman's ' reproductive rights' while granting a wife's plea to have a child through IVF with her estranged spouse.

   
A newborn baby in an incubator (Representational image) | Photo: Adriana Loureiro Fernandez | Bloomberg

A newborn baby in an incubator (Representational image) | Photo: Adriana Loureiro Fernandez | Bloomberg

New Delhi: Unfair, absurd, biased — a Nanded family court’s order directing a man to donate sperm to his estranged wife for IVF is being questioned in legal circles, with lawyers telling ThePrint that it is unlikely to withstand the scrutiny of a higher court.

Judge Swati A. Chauhan had highlighted a woman’s “rights of reproduction” as she granted a wife’s plea to have a child through IVF with her estranged spouse.

In the matters of conceiving and procreating a child, the judge had said, men and women are not similarly situated. Therefore, she ruled that women will always have an “upper hand in the matter of reproduction”.

Senior advocate Geeta Luthra said the order, delivered 10 days ago amid the Maharashtra-based couple’s divorce proceedings, was “unfair”. A man, she added, could not be forced to father a child.

“Ultimately, it is a matter of choice. You can’t force a woman to become pregnant or carry a child,” she said. “Based on what I understand, it’s not correct… You just reverse the roles… Would you do this to the woman?”

The couple in question already has a seven-year-old son. The divorce was initiated by the husband two years ago on the grounds of cruelty, with the wife also filing a complaint against him under Section 498A (cruelty by a husband or his relatives) of the IPC.

However, she subsequently moved the court with a plea for a second child with her husband, seeking either the restitution of her conjugal rights or his sperm for in-vitro fertilisation (IVF).

Her reasons included that their son may want a sibling one day and she didn’t want to go in for a second marriage.

She told the court that if her plea was granted, she would not claim maintenance for the second child, and also withdraw the case she filed under Section 498A.

Speaking to ThePrint, Luthra was dismissive of the undertaking.

“This is not a barter,” she said. “She says she won’t claim maintenance but the fact is that, legally, she will have a right to maintenance… You can go to a sperm bank and get sperm, why would you want the sperm of a man who has already committed cruelty on you?” she said.


Also read: Don’t just blame patriarchy for fewer women in India’s job force. Blame our cities too


‘Courts can’t get into bedrooms’

Senior advocate K.T.S. Tulsi called the judgment “absurd”, saying “courts can’t get into the bedrooms of people”.

“I don’t think this is a judicially-manageable issue. There is no such provision in law where someone can be compelled to have sex relations,” he said. “If a contract of service can’t be forced, how can conjugal rights in marriage be forced on anyone?”

The lawyer of the husband, M.A. Rahman Siddiqui, had made a similar argument when he told ThePrint Thursday that they would challenge the family court’s order in the Bombay High Court.

“This judgment is against the well-settled principles of law, because it is settled that no person can be compelled to have sex, directly or indirectly. Directly by physical relations or indirectly by IVF,” he had said.

Tulsi echoed the argument. “I find this order to be totally wrong. There is no question of any right appropriation… Just as a husband can’t force a wife, when the husband forces a wife, it is said that it’s marital rape. So how can anybody force another party? He has a right on his own body. If he doesn’t want to do it, he doesn’t want to do it,” he added.

Senior advocate Sanjay Hegde said the order would be set aside by a superior court as “the man has as much a right to privacy and… to decide whether he wants to have a child or not”.

“The order does not seem to have considered that it involves fundamental rights of three people, in as much as the order brings about another human being into the world, who would also probably have an expectation of being wanted by both parents,” he added. “I see this order being set aside by a superior court.”


Also read: There were 300 custodial deaths from 2008 to 2016, but zero convictions


Start of a debate on the rights of men?

Former Punjab and Haryana High Court judge Rajiv Bhalla saw the order as the beginning of a debate on the rights of men.

“The order seems to be a detailed analysis of reproductive rights, but in an erroneous direction,” he said. “No person, whether a man or a woman, can be compelled to part with any part of himself or herself, whether to procreate a child or otherwise.”

“As much as a woman cannot be forced to have a child, can it be done to a man?” he asked. “The answer is an emphatic and legal no. But a debate should start on the rights of men.”

‘Unfair characterisation of order in the media’

Senior advocate Karuna Nundy, however, said the order had been unfairly portrayed by the media.

Asking the man to donate his sperm, the Nanded court had noted that “the respondent may refuse for ART (assisted reproductive treatment)… But, by unreasonable refusal, he may expose himself to the legal and logical consequences that may follow”.

Speaking to ThePrint, Nundy said the order did not force the husband to undergo the process, but merely stated that his refusal “could be a grounds for divorce”.

“The way that the order has been characterised in most of the media is unfair. It does not seem to be that the judge was forcing the husband to procreate with his wife through IVF even though they were separated,” she added. “What she (the judge) was saying was that if the wife says she wants to have a child and the husband says no even through IVF, then it can constitute cruelty for the purpose of a divorce decree,” she said.

Nundy added that the decision involved came under the ambit of the Right to Privacy judgment, explaining: “This has to be very context-specific because there can be a marriage where one person wants to have a child while the other person does not.”

“It does seem to me that this should be in the realm of bodily integrity and intimate decision-making as articulated by the nine judges of the Supreme Court in the Justice Puttaswamy judgment,” she added.


Also read: BJP hands a job list to its women MPs — demand 3-hour work for ‘homemakers’