India is the 6th largest economy[i] in the world and has been developing at a rapid pace. The rank of India[ii] as per WIPO’s Global innovative index which is calculated across 80 indicators that explore a broad vision of innovation, including political environment, education, infrastructure and business sophistication; is 46th. Thus, it becomes imminent that new technological innovation comes through in all fields. Similarly, over the last few decades, a concept of Assisted Reproductive Technology (hereinafter referred to as “ART”) has emerged to counter the infertility rate persisting in India.
The sole question which comes to the fore when we look at the children born out of such technological methods is the question of legitimacy. Legitimacy is the sole deciding factor when it comes to coparcenary status of a person in a Hindu Joint Family as well as share in the joint property.
The Mitakshara Law which governs most of North India, defines a coparcener as a male child who is “naturally born” to Hindu parents.[iii] After the 2005 Amendment to Hindu Succession Act, daughters have been granted the same status by the way of creating a legal fiction at par with a son. However, the coparcenary status of a child born out of ART remains in question as the child cannot be considered to be born naturally. Even though the legislator through a recent Act has made the ART method (i.e., surrogacy) legal, but a lack of proper legitimization in the coparcenary status of this child still persists. This article aims to deliberate upon the legitimacy of children born out of ART methods and critically analyze the importance of granting recognition to such children at par with a natural-born. The article is structured in such a manner that firstly, the author would be dealing with the concept of coparcenaries under Hindu Law, subsequently connecting it with ART methods (Surrogacy and IVF for the purpose of brevity) and their jurisprudential recognition, while analyzing the rights of the children with a critical stance. The article concludes with suggestive remedies to this dilemma.
A child falling within the four degrees of relationship in a Hindu Joint Family (hereinafter “HJF”) i.e., Son, Son’s-Son, Son’s-Son’s-Son, Son’s-Son’s-Son’s-Son, is entitled to claim a share in the coparcenary property. Any property which has been inherited from the past 4 generations without any division is termed as coparcenary property.[iv] Under the Mitakshara Law, status of coparcener is created by only one way i.e., by birth. The term “by birth” suggests that only if a “male” child is born in an HJF through natural means, can he be conferred with the status of coparcener and property rights attached with it by the sole virtue of Natural Birth.
With the developing jurisprudence in consonance with the equality principle imbibed in our Constitution, the law has changed and now the coparcenary can be created by 2 ways:
- By Birth – Under original Mitakshara law as discussed above, a male child acquires the status of coparcener by the virtue of him being born naturally in a Hindu Joint Family.
With regard to a female child born in an HJF, the original Mitakshara law other than for the purpose of marriage doesn’t confer the status of a coparcener to a female child by the virtue of birth. However, the legislator amended Section 6 of the Hindu Succession Act, 1956[v] in 2005 and the daughter in an HJF has been granted right on par with a natural-born son.
- By Adoption – The SC in the case of Basavarajappa v. Gurubasamma[vi] while interpreting Section 12 of Hindu Adoption and Maintenance Act, 1956 has held that when a child is adopted, he acquires the status of a coparcener in the adoptive family.
Thus, we can see how the status of a coparcener under Hindu Mitakshara Law is created but it is nowhere hinted on what would happen if the child (either a male or female) is not born naturally but through assisted means of ART, such as IVF and Surrogacy.
Assisted Reproductive Technology
Assisted reproductive technology (ART) as a term is generally associated with infertility both in men and women and subsequent treatment through assisted means. ART refers to any fertility treatment that involves the handling of eggs or embryos. ART treatments involve surgically extracting eggs from a woman’s ovaries, synthesizing them with the sperm in the laboratory, and either returning them to the woman or donating them to another woman.
There are two types of ART processes prevalent in India and Government has made legislations on them[vii]:
- In vitro fertilization (IVF) – The history of early attempts of IVF as an ART dates back to 1890 when the first case of embryo transplantation was reported in rabbits[viii]. In India, the concept of IVF is although not that new as the first case of IVF fertilization was reported back in 1978[ix]. This procedure has now become main stream only after 2005 when Regulatory Guidelines[x] were formulated by ICMR to control ART methods. IVF method of ART entails a complicated set of procedures aimed at assisting with fertility, preventing genetic disorders, and aiding in conceiving a child.
- Surrogacy – Surrogacy has a long history, dating back to the conventional surrogacy arrangements[xi] in biblical times. In India,commercial surrogacy or informally ‘Rent a Womb’ practice was legalized in 2002[xii]. This is another form of ART prevalent in India. A surrogate mother carries a child for another person or a Couple. The surrogate agrees to give the child to that person or couple after the birth. Surrogacy is essentially a contract whereby a woman (surrogate) agrees to carry and give birth to a child on behalf of another couple.
ART vis-à-vis the Concept of Coparcenary
Strictly going by the provisions of Hindu Personal Laws such as the Hindu Succession Act 1956, any child born other than by natural means (in this case ART) shall not be considered a coparcener since the Mitakshara Law only recognizes a “natural born” as a child born from cohabitation between a Male and a Female. Hence, it is safe to say that only through a creation of “legal fiction” can the children born out of ART methods, such as surrogacy and IVF, be given coparcenary status.
In India, the personal laws are given precedence even over the fundamental rights in certain circumstances[xiii] but for the welfare of people, the legislature holds the authority to change even the personal laws to an extent so as to do justice and grant equal rights to those who deserve them. The legislature, in pursuance of the principles of equality, has introduced the Assisted Reproductive Technology (Regulation), Act, 2021, through which the clouds surrounding the coparcenary status of ART born children have been cleared. Under Section 31 of the Act[xiv], a legal fiction that we have been talking about in this article has been created. Section 31 is being reproduced below for the sake of convenience:
“Section 31 – “(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.”
We can see through the above section that the Legislature has taken a prudent step in giving precedence to equality rather than giving precedence to personal laws that don’t explicitly recognize the rights of a child born out of ART.
Does the Dilemma still remain?
Everything on paper looks good but the impression of what is written on paper and what is happening on the ground is different. The legislature has idealistically brought in this legislation to give legitimacy to a child born out of ART as well as introduced some other Acts for regulating ART methods like IVF and Surrogacy, but the question that still requires further consideration is the “retrospective” implementation of these laws for the purpose of giving coparcenary status to those children born out of ART method, before this Act came into force. The Act maintains silence as to whether the act is prospective, retrospective, or retroactive.
It is pertinent to discuss the case of Vineeta Sharma v. Rakesh Sharma [xv] where the Supreme Court had clarified the status of the law concerning the applicability of legal fiction created under Sec. 6 of HSA, 1956; that the provision was retroactive in nature, meaning that only after the commencement of Amended Act in 2005, the daughter can claim partition in a HJF.
The retroactive interpretation pointed out that the daughter shall be considered non-existent before 2005 so as to not disturb the partition (notional, in case the father died when partition was yet to take place) that already took place before the commencement of the amended Act.
The ART Regulation Act has again presented a lacune that existed in HSA, 1956 when it was introduced i.e., a clear-cut intent and interpretation regarding the applicability of Act. Prospective or Retroactive application of the law must be preferred so as to grant the rights to ART born children as well as ensure that the rights of other coparceners are not affected in a negative manner. The legislature should not wait for the Hon’ble Supreme Court to interpret the applicability of this provision and should rather fulfill its duty as lawmaker to promptly clarify the stand over the Act.
Over the course of years, the legislature has introduced some very important Acts with respect to ART (as we have discussed above), the most important out of them being the Assisted Reproductive Technology (Regulation), Act, 2021 that has granted the coparcenary status to ART born children equivalent to that of a natural/biological child. However, dilemma with regard to the rights of children born out of ART methods before this Act came into force still remains to be answered. This question must be answered at the earliest, considering the increasing usage of ART in the Indian Society.
[i] Yashwant Raj, India is world’s sixth largest economy at $2.6 trillion, says IMF, HINDUSTAN TIMES (April 19, 2018, 10:40 AM), https://www.hindustantimes.com/business-news/india-is-world-s-sixth-largest-economy-at-2-6-trillion-says-imf/story-7wXZPXSWlvvImlAvpLKeNL.html.
[ii] WIPO, Global Innovation Index Database (2021), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_2000-section3.pdf.
[iii] Saimy Eliza Abraham, Short Note on Hindu Joint Family-Under Mitakshara and Dayabhaga, Vol. 2 issue 1 International Journal of Law Management & Humanities, 1, 2 (2018).
[iv] Vijender Kumar, Coparcenary Under Hindu Law: Boundaries Redefined, Vol. 4, NALSAR Law Review, 28, 31 (2008).
[v] Hindu Succession Act, 1956, § 6.
[vi] (2005) 12 SCC 290.
[vii] The Surrogacy (Regulation) Act, 2021, No. 47, Acts of Parliament, 2021 (India); The Assisted Reproductive Technology (Regulation) Act, 2021, No. 42, Acts of Parliament, 2021 (India).
[viii] J.D Biggers, Walter Heape, FRS: a pioneer in reproductive biology. Centenary of his embryo transfer experiments, Vol. 93 Issue 1 Journals of Reproduction & Fertility Ltd. 173, 178-179 (1991).
[ix] Mukherjee S& Bhattacharya SK, The Feasibility of Long Term Cryogenic Freezing of Viable Human Embryos – A Brief Pilot Study Report, Indian J Cryogenics, 3, 80 (1978).
[x] ICMR, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (Issued in 2005).
[xi] News Desk, The First Recorded Surrogate Mother, THE WASHINGTON POST (May 2019), https://www.washingtonpost.com/archive/opinions/1987/04/25/the-first-recorded-surrogate-mother/8c036610-d1c7-4b7b-b14d-e79d7803af73/.
[xii] Bronwyn Parry & Rakhi Ghoshal, Regulation of Surrogacy in India: Whenceforth Now?, Vol. 3 issue 5 BMJ Global Health (2018).
[xiii] The State of Bombay v. NarasuAppa Mali, 1951 SCC OnLine Bom 72.
[xiv] Assisted Reproductive Technology (Regulation), Act, 2021 §31(1).
[xv] (2020) 9 SCC 1.
(This article is written by Kanishk Tiwari and Sanjana Tiwari. Kanishk is a 2nd Year B.A.LL.B (Hons.) student at MNLU Nagpur, whereas Sanjana is currently a practising Advocate at the High Court of Madhya Pradesh. )
CITE AS: Kanishk Tiwari and Sanjana Tiwari, ‘Assisted Reproductive Technology & Coparcenary Rights: A Dilemma’ (The Contemporary Law Forum, 07 July 2022) <https://tclf.in/2022/07/07/assisted-reproductive-technology–coparcenary-rights-a-dilemma> date of access.