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Mind the legal gap

Infertility is rising globally and is increasingly becoming a cause for concern. According to a recent study published by the journal aging, the burden of infertility rose by 0.370 percent per year for females and 0.291 percent per year for males from 1990 to 2017. While ovarian cyst remains a major reason for infertility among Nepali women, there are various other medical and non-medical factors that affect the fertility of Nepali men and women, including late marriage, late family planning and stress. Some studies have suggested that the prevalence of infertility among Nepali married couples ranges between 12 and 15 percent.

The mushrooming of in vitro fertilization (IVF) clinics for infertility treatment in major cities in Nepal suggest it is catching up here. However, there are no guidelines or laws governing infertility treatment, raising several legal questions. We are running late in discussing the crucial medico-legal issues that result from the absence of an infertility treatment law.

common technologies

The most common assisted reproductive technologies used in infertility treatment include artificial insemination (AI) and IVF. AI involves the insertion of sperm into a woman’s uterus or vaginal canal by methods other than vaginal intercourse. This can be done with either the husband’s sperm or donor sperm. IVF involves fertilizing sperm and ovum in the laboratory and then transferring the embryo to a woman’s uterus. In-lab fertilization can be done with husband-wife sperm and ovum, donated sperm and ovum, husband’s sperm and donated ovum, or donated sperm and wife’s ovum.

Such assisted reproductive technologies ought to be carried out following clinical guidelines established by scientific communities worldwide for a safe and ethical treatment of infertility. Since it is a sensitive matter involving progeny, several developed countries have established IVF treatment guidelines. However, in Nepal, the lack of laws and guidelines concerning the issue could lead to a violation of Nepal’s anti-incestuous marriage statute in the long run. Incestuous marriage is not just illegal, but it also has medical ramifications. It is problematic from a medical point of view since it keeps poor genes in the gene pool and multiplies their effect.

Article 74 of the Civil Code provides that if a pregnant woman gives birth to a child from physical intercourse with a man, the man and the woman are presumed to be married, ipso facto. The legal right of a child born thus has been safeguarded in Article 75. This raises legal concerns about identifying such a child and the validity of a union between a man and a woman who conceives a child using assisted reproductive technology. Article 76 provides that if a child is born as mentioned in Article 74, both or either of husband and wife may apply for marriage registration. This shows that if an unmarried woman gives birth to a child with her consensual spouse’s sperm via assisted reproductive technology, but her partner de ella afterwards denies marriage or the child, she has little scope to petition for marriage registration under Article 76.

According to Article 109, a child born through an artificial insemination system from the sperm of another person with the consent of husband and wife is considered to have been born from the married spouse and their paternity is decided accordingly. The concept of ovum donation has been overlooked in this statute. Moreover, the notion of IVF has been left out, and the relation with the biological father ignored. While parental rights are given to a couple who give birth to a child through artificial insemination with sperm from a third party, the biological father of such a child is the man who donated the sperm. Such children inherit their genes from their biological father instead of their legal father. Therefore, it is necessary to protect the identity of the ovum donor in a centralized data record system. This system should be connected globally so they can be tracked whenever they donate sperm or ovum.

A law should be enacted to track how many couples have used donated sperm or ovum in Nepal. Limiting the number of sperm and ovum contributions and the number of offspring they can procreate is crucial because there’s a strong possibility that if there’s no rule, some humans will turn sperm or ovum donation into a cash cow. Ultimately, the offspring born from donated sperm or ovum may unwittingly marry their siblings or half-siblings. Every child born from sperm or ovum donation and any couple receiving assisted reproductive technology should be aware of their biological identity. Laws should be drafted so that people undergoing IVF therapy and their offspring are notified about their biological relationship to ensure that no siblings or half-siblings marry in the future, resulting in incestuous marriage.

The law should also address the relationship between a child born from donated sperm or ovum and a natural or adopted child, cousin or other family members because the rule of the prohibited degree of kinship does not apply here from a genetic standpoint. Moreover, couples adopting assisted reproductive technologies should also be protected from theft of sperm or ovum.

Infertile couples and women who want to be single mothers have benefited from the advancement of assisted reproductive technology. If the law recognizes homosexual marriage, it will open new avenues for LGBTIQ+ communities to use assisted reproductive technology for procreation. Assisted reproductive technologies have been a benefit to many. Still, until they are brought within the confines of the law, no matter how hard medical experts try, they might be a scourge to society, with the potential for incestuous marriage. It is, therefore, of utmost necessity to create a law and enforce it, and institutionalize a robust centralized record system connected to a global network to regulate safe assisted reproductive technologies in Nepal.

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