Birthing a Controversy

Charan Kaur, mother of Shubhdeep Singh Sidhu, popularly known as Sidhu Moosewala, gave birth to a child at the age of 58 through the technique in a private hospital. Legally, women above 50 years of age are not allowed to do this in India. It has now become a political slugfest

The Union health ministry has asked for a report on the child who was born through in-vitro fertilisation (IVF) by Sidhu Moosewala’s parents. In return, the Punjab government has issued a show cause notice to health secretary Ajoy Sharma for acting on the centre’s request for a report on the IVF treatment and sought a reply within two weeks. The secretary, on his own, had sought details from the departmental officials on the child. He did this without bringing it to the notice of Punjab Chief Minister Bhagwant Mann and state health minister Dr Balbir Singh.

On March 19, Balkaur Singh, the father of the slain singer, Sidhu Moosewala, while accusing Mann said that his wife’s treatment had not been completed yet and the state government had already started asking for such a report to harass him. Singh also said that if the chief minister felt he had done anything wrong, he should file a case ag­ainst him. Moosewala’s father also released a video claiming that Punjab government officials were harassing him and asking him questions regarding the child. This caused a great deal of embarrassment to the state government. 

Later it was revealed that the report Balkaur was referring to was not ordered by the Punjab government, but by the central government, and on the basis of their letter, the principal secretary of the health department formally asked his subordinate officers to furnish details from the concerned hospital. The hospital informed Balkaur which prompted him to post the video on the internet, indirectly embarrassing Mann.

In the shared post, Balkaur is seen with his newborn son is in his lap and Shubhdeep Singh’s photo in the same frame. As soon as the post went viral, there was a flood of congratulatory messages on social media. Women and fans of Moosewala from the village and elsewhere reached the mansion and celebrated by distributing sweets. This is the first time that any celebration had been held in the household since May 29, 2022, when Moosewala was shot dead by gangsters in village Jawaharke.

The controversy has turned the spotlight on IVF or in-vitro fertilization. When a woman’s body is not able to fertilize the egg, it is fertilized in the lab. IVF is also called embryo implantation and children born through this technique are called test tube babies. Since the maximum age for IVF in India is set at 50 years, Charan Kaur became pregnant through this technique from abroad. That is why the centre sought information on the detailed report and action taken report in this matter, citing the Assisted Reproductive Technology Act.

The Assisted Reproductive Technology (Regulation) Act, 2021 is for the regulation and supervision of assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where assisted reproductive technology is required for becoming a parent or for freezing gametes, embryos, embryonic tissues for further use due to infertility, disease or social or medical concerns and for regulation and supervision of research and development and for matters connected therewith.

Section 21 of the Act states the general duties of assisted reproductive technology clinics and banks which are allowed to perform the following duties:

(a) The clinics and banks shall ensure that commissioning couple, woman and donors of gametes are eligible to avail the assisted reproductive technology procedures subject to such criteria as may be prescribed.

(b) The clinics shall obtain donor gametes from the banks and such banks shall ensure that the donor has been medically tested for such diseases as may be prescribed.

(c) The clinics shall—

(i) provide professional counselling to commissioning couple and woman about all the implications and chances of success of assisted reproductive technology procedures in the clinic;

(ii) inform the commissioning couple and woman of the advantages, disadvantages and cost of the procedures, their medical side effects, risks, including the risk of multiple pregnancy; and

(iii) help the commissioning couple or woman to arrive at an informed decision on such matters that would most likely be the best for the commissioning couple.

(d) The clinics shall make commissioning couple or woman aware of the rights of a child born through the use of assisted reproductive technology.

(e) The clinics and banks shall ensure that information about the commissioning couple, woman and donor shall be kept confidential and the information about treatment shall not be disclosed to anyone except to the database to be maintained by the National Registry in a medical emergency at the request of the commissioning couple to whom the information relates, or by an order of a court of competent jurisdiction.

(f) Every clinic and every bank shall maintain a grievance cell in respect of matters relating to such clinics and banks and the manner of making a compliant before such grievance cell shall be such as may be prescribed;

(g) The clinics shall apply the assisted reproductive technology services—

(i) to a woman above the age of twenty-one years and below the age of fifty years;

(ii) to a man above the age of twenty-one years and below the age of fifty-five years.

(h) The clinics shall issue to the commissioning couple or woman a discharge certificate stating details of the assisted reproductive technology procedure performed on the commissioning couple or woman.

(i) All clinics and banks shall co-operate and make available their premises for physical inspection by the National Board, National Registry and State Boards.

(j) All clinics and banks shall provide all information related to—

(i) enrolment of the commissioning couple, woman and gamete donors;

(ii) the procedure being undertaken; and

(iii) outcome of the procedure, complications, if any, to the National Registry periodically, in such manner as may be prescribed.

Section 26 of the Act deals with sex selection. It says:

(1) Subject to the provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, (57 of 1994) the clinic shall not offer to provide a couple or woman with a child of a pre-determined sex.

(2) It is prohibited for anyone to do any act, at any stage, to determine the sex of the child to be born through the process of assisted reproductive technology to separate, or yield fractions enriched in sperm of X or Y variations.

(3) A person shall not knowingly provide, prescribe or administer anything that shall ensure or increase the probability that an embryo shall be of a particular sex, or that shall identify the sex of an in-vitro embryo, except to diagnose, prevent or treat a sex-linked disorder or disease.

Section 31 of the Act deals with the rights of child born through assisted reproductive technology. It says:

(1) The child born through assisted reproductive technology shall be deemed to be a biological child of the commissioning couple and the said child shall be entitled to all the rights and privileges available to a natural child only from the commissioning couple under any law for the time being in force.

(2) A donor shall relinquish all parental rights over the child or children which may be born from his or her gamete.

Section 33 of the Act deals with offences and penalties. It says: 

(1) Any medical geneticist, gynaecologist, registered medical practitioner or any person shall not—

(a) abandon, disown or exploit or cause to be abandoned, disowned or exploited in any form the child or children born through assisted reproductive technology;

(b) sell human embryos or gametes, run an agency, a racket or an organisation for selling, purchasing or trading in human embryos or gametes;

(c) import or help in getting imported in whatsoever manner, the human embryos or human gametes;

(d) exploit the commissioning couple, woman or the gamete donor in any form;

(e) transfer human embryo into a male person or an animal;

(f) sell any human embryo or gamete for the purpose of research; or

(g) use any intermediates to obtain gamete donors or purchase gamete donors.

(2) Whoever contravenes the provisions of clauses (a) to (g) of sub-section (1), shall be punishable with a fine which shall not be less than five lakh rupees, but may extend to ten lakh rupees for the first contravention and for subsequent contravention, shall be punishable with imprisonment for a term which shall not be less than three years, but may extend to eight years and with a fine which shall not be less than ten lakh rupees, but may extend to twenty lakh rupees. 

The fact that the Moosewalas opted to go abroad to have the child has added another twist to the story, and its legal outcome. 

By Shivam Sharma and India Legal Bureau

Crime Today News | Judiciary

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