New Delhi: A family court in Maharashtra has granted a woman’s plea to have a second child with her estranged husband by directing him to donate his sperm for IVF, which could kick-start a debate over the gender question in reproductive rights.
The order of the Nanded court came two years after the husband sought divorce from the woman on the grounds of cruelty, while the wife has filed a complaint against him under Section 498A (cruelty by a husband or his relatives) of the IPC.
The former partners already have a seven-year-old son who is in his mother’s custody. Both are now preparing the grounds for further legal proceedings.
The husband’s lawyer, M.A. Rahman Siddiqui, said they would challenge the order in the Bombay High Court on the argument that it was a violation of his client’s fundamental rights.
“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 told ThePrint.
“If the husband compels his wife to do it against her will, then it is an offence… In addition to this, the Supreme Court has held that even for criminal cases, a blood sample cannot be taken from an accused without his consent,” he said.
Meanwhile, the wife’s lawyer, advocate Shivraj Patil, is set to file a contempt plea against the husband in case he does not comply with the family court’s order.
‘I want a family’
The woman had moved the family court for a second child in 2017. She said she wanted another child, and that her son may need the “company and support of a sibling” in the future.
To this end, she had sought either the restitution of her marriage, or permission to undergo in-vitro fertilisation (IVF) with her husband.
She cited her age, now 35, to claim her fertility and strength to bear and rear a child were on the decline.
Speaking to ThePrint, the woman recalled the difficulties in her marriage over the years but said she did not want a divorce.
“I want to have a family, but I don’t know how much time it would take for the divorce proceedings to conclude,” she said. “I cannot wait till then to start a family, it might take 10-15 years.”
She added that she did not want to marry again and this is what motivated her to approach the court.
“I want a second child. I am 35 right now and I don’t want to go for a second marriage but I want my family,” she told ThePrint. “My family right now is my son, me, and if God gives me a second child.”
During the hearing, the woman gave an undertaking to the court that she would not claim maintenance for the second child, and would also withdraw the case she filed under Section 498A.
The husband, however, opposed the plea, contending that no spouse could be compelled to have conjugal relations directly or indirectly without free consent.
‘Rights of reproduction’
During the hearing, judge Swati A. Chauhan of the family court sought to highlight a woman’s “rights of reproduction”.
The court acknowledged that the restitution of conjugal rights could not be imposed on any spouse, but allowed the wife’s plea to bear a child through IVF, observing, “…The right to reproduce is a very intricate feminine right emanating from basic woman’s 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,” she added.
Judge Chauhan cited the observations of several international authorities to explain women’s right to reproduction. For instance, she referred to Article 16.1 of the Universal Declaration of Human Rights 1948, which states that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”.
The judge also cited the United Nations International Conference on population and development, 1994, where it was said that “a key aspect of personal autonomy are reproductive rights, which entail rights to make sexual and reproductive decisions”.
In addition to various Supreme Court judgments, including the one on Right to Privacy, judge Chauhan also cited an order passed by the US Supreme Court, which held marriage and procreation to be “fundamental to the very existence and survival of the race”.
The judge explained that reproductive rights include the rights of an individual to decide whether to reproduce, saying, “Women have a right not to be a mother, similarly, they have a right to be a mother. Both these rights are to be equally respected.
“This right emerges from her human right to live with dignity as a human being in the society and is protected as a fundamental right under Article 21 (protection of life and personal liberty) of the Constitution of India, with reasonable restrictions,” she added.
Do men have reproductive rights?
The judge also sought to discuss the reproductive rights of men, weighing them against Article 14 of the Constitution of India.
“In India, under Article 14, the fundamental rights guarantee ‘right to equality’ to both men and women. There are series of judgments of Hon’ble Supreme Court which say that ‘right to equality’ is guaranteed to men and women if they are ‘similarly situated’,” the court added.
In the matters of conceiving and procreating a child, the judge said, men and women are not similarly situated. Therefore, she ruled that women will always have an “upper hand in the matter of reproduction”.
The role of men, she asserted, can be to “propagate responsible fatherhood and gender equality by supporting the women’s choice of family planning”.
The court also cited foreign judgments where courts held that refusal of sexual intercourse without sufficient cause amounted to cruelty. It then asserted that if the husband refused consent without sufficient cause, it could entail legal consequences.
“The respondent may refuse for ART (assisted reproductive treatment) by not giving his consent. But, by unreasonable refusal, he may expose himself to the legal and logical consequences that may follow,” it observed.
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