CIA 3

Family Law

Artificial Insemination in and beyond India

Submitted by
Sanjeev Kumar
1750129
3 BALLB A
 INDEX

1. Literature Review

2. Abstract

3. Introduction

4. Types of artificial insemination

5. Situation regarding legitimacy of children in India

6. Artificial Insemination amounting to adultery

7. Artificial Insemination not amounting to adultery

8. Rights and Obligations of the husband and the donor

 Literature Review

1. Practical and Ethical aspects of Artificial Insemination, Sophia J. Kleegman

The article talks about the various circumstances under which couples decide to
undertake artificial insemination. Further on the article talks about therapeutic
insemination which is an essential therapy to provide relief to sterile marriages. Also
the article mentions how it is the choice of a couple and should not be a means to save
the marriage.

2. Artificial Insemination versus Adoption, J. G. P.

The article focuses on differentiating between artificial insemination and adultery. It
broadly takes into account two conditions i.e. (1) where the husband’s semen is used
during artificial insemination, and (2) where the donor’s semen is used during the
process of artificial insemination. And the article provides numerous case laws for the
same.

3. Artificial Insemination and the family, Priyasha Saksena

The article speaks about how the traditional notion of family is getting eroded with
the coming up of new methods of artificial reproduction. It also brings change in
societal mindsets and helps in making other forms of family structures acceptable in
society. The article further attempts to examine some of the dilemmas that arise due to
the use of artificial insemination as a method of reproduction. It also states the law
that exists in different jurisdictions.

4. Artificial Insemination – The Problem and the Solution, Neal Weinstock

This article talks about the growth and success of artificial insemination. It further
goes on to state how this artificial method of reproduction has been received in the
society and provides various case laws for the same. Further it provides with the
various legislations that exists in this regard and those that have been proposed.

5. Artificial Insemination: An Examination of the Legal Aspects, Allen D. Holloway

The article was helpful understanding the various types of artificial insemination
techniques. It further spoke about the various problems or the medical rules pertaining
to the same. Than it describes other complications related to the technique of artificial
insemination i.e. civil and criminal laws. And at last it also take into account some of
the case studies on the matter.
Abstract

In today’s world of modern medicine and science it has become possible to conceive children
through various techniques, for example, artificial insemination, in virto fertilization, and
embryo transplantation. Artificial Insemination is one of the oldest and well-established
procedures for treating infertility. It is a technique that can help treat certain kinds of
infertility in both men and women. The procedure involves inserting sperms directly into a
woman’s cervix, fallopian tubes, or uterus. This makes the trip shorter for the sperm by
bypassing any possible obstructions and making pregnancy possible. While such techniques
have proved to be a boon on one hand, on the other have raised numerous legal questions.
The first and foremost regarding the child’s status and the rights and designation of the
parents. Further, what will be the status of a child conceived by a third-party donor? The
paper aims at discussing – types of artificial insemination, situation regarding legitimacy of
children, whether artificial insemination amounts to adultery or not, and the rights and
obligations of the husband and the donor. Also talking of Artificial Insemination, in
particular, there is no law regarding the same in India.

Keywords: Artificial insemination, ART, Third-party donor, rights of children.

Introduction

Any medical technique that attempts to obtain pregnancy by means other than sexual
intercourse is defined as Assisted Reproductive Technology. ART helps to solve the problem
of childlessness. In other words, these techniques manipulate the sperms and ooctes outside
the body and the gamete of embryos are transferred into the uterus; ART includes Artificial
Insemination (AI), In Virto fertilization embryo transfer (IVF, ET), etc.

Artificial Insemination is one method out of several that are grouped together as the new
reproductive technologies; the others being surrogacy and in-virto fertilization. It is a widely-
used and popular technique for artificial procreation used by childless couples; its relative
simplicity making it an extremely popular method. It involves the artificial introduction of
sperm into the uterus of a woman, usually with the help of a syringe.1 AI is the introduction
of semen into the vagina or cervix of a female by any method other than sexual intercourse.
There is evidence that people have been using artificial insemination to induce pregnancy in
animals for centuries. It can be used to overcome both male (sterile or impotent) and female
infertility problems (where the cervix or fallopian tubes pose barriers to normal
insemination). Artificial Insemination has become useful to impregnate women who are
physically capable of conceiving and bearing a child but who cannot do so through sexual
intercourse, usually because their husband is sterile or impotent. Fresh semen is obtained
from the husband or from some other male donor and is introduced by syringe into the
women’s vagina or cervix during her menstrual period. The semen can also have been
previously stored in a sperm bank. This technique is reasonably successful in achieving
conception and pregnancy.

The concept of artificial insemination differs from a layman to a professional. To a layman it

probably means an unnatural birth which may involve legal implications regarding the
legitimacy of the children. To the professional, it is a concept that has been and is beclouded
by the secrecy which understandably surrounds it; yet on the other hand, knowing that it is
intertwined not only with legal views, but with religious and social views as well. 2The
purpose of this paper is to discuss artificial insemination in terms of how it has been received
– by the courts, the public, and religious groups.

Types of Artificial Insemination

There are three main forms of artificial insemination: homologous artificial insemination,
where a woman is inseminated with the sperm of her husband; heterologous artificial
insemination, or artificial insemination by donor, where a woman is inseminated with the
sperm of an unknown donor; and combined artificial insemination, where a woman is
inseminated with a mixture of the of her husband and an unknown donor.3

1. A.I.H. – (Artificial Insemination with semen obtained from the husband)

1
A. Roy, Artificial Insemination: Doctor’s Dilemma in Ethics and Law, (2000) 14(6) LEGAL NEWS AND VIEWS
39.
2 Neal Weinstock, Artificial Insemination – The Problem and the Solution, 5 Family Law Quarterly 369, 369

(1971)
3
W. Wadlington, Artificial Conception: The Challenge for Family Law, (1983) VA. L. REV. 465 as sourced
from P.N. SWISHER, H. A. MILLER AND W. I. WESTON, FAMILY LAW: CASES AND MATERIALS 403 (1990).
 This is also known as homologous artificial insemination. An AIH raises no question
of surrogate parenthood being a product of its own parent’s seeds. It is normally used
when the husband is fertile, but impotent, and does not pose much of a legal problem,
as the woman is impregnated with the sperm of her husband, and so, both husband
and wife are the biological parents of the child. It can be regarded as legitimate, and
process of impregnation both justifiable and unobjectionable.

2. A.I.D. – (Artificial Insemination with semen obtained from the donor)

It is also known as heterologous artificial insemination. This case is more
problematic. It is normally used when the husband is infertile. Since the woman is
impregnated with the sperm of an unknown donor, the child born is the biological
child of only the woman and not her husband. The introduction of the third party
complicates matter and leads to several problems of adultery, illegitimacy, consent,
consummation, inheritance, etc. An AID child is, thus, genetically linked to a parent
outside its own family.

3. A.I.C. – (Artificial Insemination with mixed semen obtained from husband and a
donor)
Earlier, a popular form of artificial insemination was AIC, in which the sperm of the
husband and a donor were mixed. The advantage of this procedure was that it could
not be conclusively stated that the husband was not the father of the child. It was
normally done for a psychological benefit to an infertile husband, who may believe
that the child is born of his sperm and not that of the donor. This was important
during an age where artificial insemination was considered to be immoral and
tantamount to adultery, with the resulting child being considered as illegitimate and
having no inheritance rights. With the acceptance of artificial insemination in society
and there being no medical superiority of this technique over AID, the popularity of
AIC diminished.

Situation regarding legitimacy of the children in India

Historically, the rights of a child depended, to a large extent, on the fact of his
legitimacy or illegitimacy. Legitimacy or illegitimacy depended on the nature of the
relationship between the parents of the child at the time of his birth, i.e. if they were
 married, then he was legitimate, if not, then he was illegitimate. Most illegitimate
children were denied any kinds of rights. This was due to the fact that his birth was
outside the conventional model of a family, where the bond of marriage linked the
parents. Social disapproval of such ‘deviant’ family structures led to strong reactions
against the birth of illegitimate children. The parents, especially the mother, were
treated as outsiders, and the child was not given the rights normally granted to a child
as against his parents. 4 This is especially true in matters of succession, where an
illegitimate child is not considered to be a legal heir of both his biological parents,
and hence, cannot inherit property akin to a legitimate child.

Whether a child born as a result of artificial insemination is legitimate or not depends

on whether his/her mother’s impregnation constituted an act of adultery, which is an
act of sexual intercourse outside the institution of marriage. If it did, then the child is
illegitimate, but if not, then the child is legitimate. So, adultery and illegitimacy, in
the case of artificial insemination, are interrelated issues.5 In the case of AID, it has
been argued that not only the woman undergoing the treatment but the doctor and and
the donor also become adulterous. Doctor because he introduces the semen in the
woman and the donor because he becomes the father of the child.

Considering Indian laws, AID cannot amount to adultery and a child born of AID is
legitimate. According to the Indian Penal Code the act of adultery must constitute
sexual intercourse, not amounting o rape, between a man and a woman whom he
believes to be another man’s wife, without the consent of the husband. AID does not
involve penetration, or physical union and therefore, cannot amount to adultery under
the Indian law. On the question of legitimacy of the child born of AID, under the
Indian Evidence Act, the legitimacy of child is considered in case of valid marriage
between the mother and the provider, in the absence of the evidence of non-access.
Hence, for all practical and legal purposes, the husband can be regarded as the father
of the child born out of AID, unless he loses id non-access and absence of consent to
his wife for undergoing AID. So, though the child is not the biological offspring of

4
L. LAMBERT AND J. STREATHER, CHILDREN IN CHANGING FAMILIES 26-27 (1980).
5
G. P. Smith, Thought of Test Tube Darky: Artificial Insemination and the Law, (1968) 67(1) MICH. L. REV.
127, 134.
 the husband and the wife, the child is not considered illegitimate and enjoys all the
rights that a legitimate child does.

Artificial Insemination amounting to Adultery

The very first reported instance where the question of adultery was raised was in the
Canadian case of Orford v. Orford. 6In this case, the husband was living in Canada and the
wife was living in England. The husband filed for divorce on the grounds of adultery of the
wife, while the wife claimed that the child was born as a result of AID.The court held that
“the essence of the offence of adultery consists, not in the moral turpitude of the act of sexual
intercourse, but in the voluntary surrender to another person of the reproductive powers or
faculties of the guilty person; and any submission of those powers to the service or enjoyment
of any person other than the husband or the wife comes within the definition of adultery.”
This definition assumes significance because it shifts the essence of adultery from the sexual
act of penetration to any act that might introduce a false strain of blood in the family.7

In the United States, one of the earliest cases in this regard was Strnad v. Strnad. 8In this case
after having a child through the process of AID, the husband and the wife separated. The
husband filed for visitation rights which the wife tried to resist, on the grounds that the child
was not that of the husband, but of an unknown, third party donor. In this case the court
adopted a forward-looking stance and held that the parental rights of the husband over a child
born of AID were akin to those of an adoptive father, thus holding that the child born was not
illegitimate.9

In Doornbos v. Doornbos,10 the wife filed a petition to obtain a judicial declaration that the
husband had no right over the child after divorce as the child was born as a result of AID, and
had not been legally adopted by the husband, and so, he was not the father of the child, and
hence, had no right over the child. The court held that a child born of AID even with the

6
58 D.L.R. 251 (1921)
7 Supra note 5, at 135.
8
78 N.Y.S.2d 390.
9 Id.
10
139 N.E.2d 844.
consent of the husband was illegitimate. The husband, therefore, was not the father of the
child, and hence, had no parental rights with respect to the child. A similar situation arose in
in Gursky v. Gursky.11 In this case the husband after giving consent to his wife for
undergoing AID, claimed that he was not the father of the child and so, would not have to
pay child support after separation. The court held that a child born to a married woman
through a father who was not her husband was illegitimate, and hence, a child born as a result
of AID was illegitimate and the act of the mother constituted adultery.

Artificial Insemination not amounting to Adultery

The above-mentioned trend was reversed in the case of People v. Sorensen. 12This was the
first criminal case involving AID. A couple divorced after having a child through AID and
the husband did not pay child support. Criminal proceedings were initiated against him under
Section 270 of the California Penal Code for non-payment of child support. The court held
that the man who has consented to his wife undergoing AID was the lawful father of the child
born as a result of AID, and hence, was liable to pay child support after separation from his
wife. The court also said that paternity was established when a person purchased semen and
used it to inseminate his wife. And answering the question of adultery, the court held that it
would be absurd for an act of AID to be classified as adultery for the doctor, the donor or the
women undergoing AID, because the doctor may be female, the donor may be thousands
miles away, or the husband may himself be inserting the semen via a syringe. So, the process
of AID is not adulterous for the woman, the doctor or the donor.

As per English common law, traditionally AID has not been thougt to constitute adultery. It is
because the require of adultery has always been penetration as stated in Maclennan v.
Maclennan.13 The case involved a petition by the husband for divorce on the grounds of his
wife’s adultery he claimed that he was incapable of procreating, but his wife had given birth
to a child. The wife contended that the child was born as a result of AID, which had been
performed with her husband’s consent. The husband denied to have given consent and
claimed that AID constituted adultery. In this case it was held that sexual intercourse was
needed to constitute adultery, and sexual intercourse was defined so as to include the

11
242 N.Y.S.2d 406
12
66 Cal. Rptr. 7.
13
(1958) Sess. Cas. 105.
penetration of the female organ by the male organ; since artificial insemination did not
include such penetration, it could not constitute adultery. However, the court also held that if
a married woman underwent AID without the consent of her husband, it would constitute a
grave and heinous offence and could be made a separate ground for divorce or judicial
separation.14

Rights and Obligations of the husband and the donor

On the issue of consent and obligation to the child born out of AID they are related because
unless the consent has been proved, the husband does not have any obligation towards the
child. Unlike the situation in a conventional family model where it is the responsibility of the
parents for the upbringing up the child, there is no such obligation here. One can clearly
notice the parental discrimination between children who are born naturally and those who are
born as a result of artificial means of reproduction.

There have been several decisions by the courts on the issue of consent, rights and
obligations, mostly in the United States. One of the earliest cases in this regard was Gursky v.
Gursky.15 In this case, a husband after giving consent to his wife for undergoing AID,
claimed that he was not the father of the child and so, would not have to pay child support
after separation. Here though the act of AID was considered to be adulterous, husband was
held to support the child born as he had consented in writing to the procedure and this was
seen as an implied contract to support the child. The same was also held when a similar
situation arose in Anonymous v. Anonymous.16 The case involved an action for alimony and
child support by a woman against her husband. It was contended on behalf of the woman that
the husband had an obligation to support a child born of AID as he had consented to the
procedure. In People v. Sorensen,17 the husband was held criminally liable for non-payment
of support for a child born of AID to which he had consented.

14
P. Diwan, Technological Niyoga and Nirodh and Social Engineering through Law, (1980) 22(4) JOURNAL OF
THE INDIAN LAW INSTITUTE 445, 460.
15
Supra note 11.
16
246 N.Y.S.2d. 835.
17
Supra note 12.
In the case of KS v. GS,18 the husband contended that he was not liable to pay child support
for the child born as a result of AID, as he had revoked his consent to the procedure after the
first round of AID had resulted in a miscarriage for his wife, who later on continued with the
treatment. It was held that the consent by the husband to the procedure of AID continues for
further artificial insemination procedures even after it has been revoked, with the onus on the
husband to prove that the consent had actually been revoked.

In England, as per the Human Fertilization and Embryology Act, the husband is treated as the
father of the child born as a result of AID and hence, he has all the rights and obligations that
a natural father has over a child.19 The Act also specifically precludes the donor from being
treated as the father, and hence, he is excluded from enjoying any rights or from having any
liabilities with respect to the child born of his semen.20

In India, though there is no specific legislation on this matter, the position should be the same
as in England, as AID is not seen as adultery, nor is the child born seen as illegitimate, hence
the husband will be treated as the father of the child, and so, will have all the rights and
obligations of a natural father with respect to the child. The donor is not specifically
precluded, by any legislation, from claiming rights over the child, but these rights are not
likely to be given to him, in order to reduce legal complications and custody battles, as the
husband is accepted as the father of the child. So, in the clash of rights between the husband
and the donor, the husband is likely to get the upper hand as society is more prone to accept
his relationship with the child, even though it does not conform to the traditional notion of the
family. This is because it is still easier to accept such a relation than the one between the
child and a person who is completely external to the family structure.

18
440 A.2d. 64.
19
Section 28(2) of the Human Fertilization and Embryology Act, 1990.
20
Section 28(6) of the Human Fertilization and Embryology Act, 1990.