Examination of In-Vitro Fertilization (IVF) and Its Legal Perspective

Author: Shreya Singh; Amity University, Lucknow

I. INTRODUCTION

In-vitro fertilization (IVF) is a sophisticated set of technologically advanced techniques used to cure infertility or genetic disorders and aid in child conception. IVF involves retrieving mature eggs from a woman’s ovaries and fertilizing them in the laboratory with spermatozoa.[1]

Patrick Steptoe and Robert Edwards’ pioneering work gave birth to “In-vitro fertilization,” and Louise Joy Brown, the first test-tube baby, was born on July 25, 1978.[2] A trial began in a New York City courtroom nine days before this birth, alleging that the Chairman of Columbia University’s Department of Obstetrics and Gynaecology had improperly and inappropriately terminated a 1972 attempt to treat an infertile couple, Dr. and Mrs. Del Zio, using the same technique.[3] As a result, the law’s application to in-vitro fertilization (IVF) is nearly as old as the practice itself.

Over 500 babies have been born as a result of pregnancies started with human IVF and embryo transfer (ET) at clinics throughout the world. There are at least a dozen initiatives in the United States that have successfully delivered babies on time. For the treatment of infertile couples, several institutions and individuals are exploring or creating IVF programs.

II. HISTORY OF IVF IN INDIA

The history of IVF in India isn’t exactly rosy. According to scientific records, the first test-tube baby in India was born on August 16, 1986, with T.C. Anand Kumar of the Indian Council of Medical Research (ICMR) and Dr. Indira Hinduja performing the procedure.[4] However, data reveal that the original pioneer of IVF in India was Late Subhash Mukhopadhyay, a little-known physician from Kolkata, who was not only questioned but even refuted. He created Indian’s first and world’s second test-tube baby ‘Durga’ (also known as Kanupriya Agarwal), 67 days after the birth of Louise Brown, according to study materials thoroughly inspected by Anand Kumar himself.

Dr. Mukhopadhyay committed suicide three years after pleading for acknowledgment of his scientific achievement but receiving none. In reality, while Edwards, a University of Cambridge professor emeritus, was praised for his efforts, Mukhopadhyay was fighting a hostile state government that dismissed his conclusions. He was mocked and ostracised, and he was not allowed to publicize his work on a global scale. In 1979, he was asked by Kyoto University to discuss his findings at a seminar in Japan, but the Indian government denied him a passport. In 1981, a sad physician committed suicide.

Dr. Mukhopadhyay revealed the birth of Durga to the press after executing the IVF experiment with his own devices, which ranged from a simple refrigerator to everyday ampoules. The Government of West Bengal established an ‘export committee’ to investigate the situation and subsequently provide formal remarks, considering it to be a grave violation of the scientific community’s credibility. A radiology physicist presided over the committee, which included a gynecologist, a psychologist, a physicist, and a neurologist- not exactly a panel knowledgeable in the complexities of modern reproductive technologies. The committee ruled that the experiment was a hoax, and the case was closed. The pioneer of IVF in India was given little credit and was put to the sidelines.

III. AT A GLANCE: LEGAL AND ETHICAL CONCERNS

Following the birth of the first scientifically well-documented test tube baby in India in 1986, a slew of IVF clinics popped up all over the country with no accreditation, oversight, or government oversight, prompting the Indian Council of Medical Research (ICMR) to draught National Guidelines for ART Clinics in India in the year 2002. Afterward, the Ministry of Health and Family Welfare reviewed the guidelines and released the National Guidelines of the Government of India in 2005, with minor changes.

The Indian Council of Medical Research (ICMR) then developed a draught of the Assisted Reproductive Technology (Regulation) Bill- 2013. The cabinet is now debating the Assisted Reproductive Technology (Regulation) Bill-2014. This bill proposes to establish a National Board, State Boards, and National Registry of (ART) in India for the accreditation and supervision of ART clinics and ART banks, ensuring that the services provided are ethical and that the medical, social, and legal rights of all parties involved are protected to the greatest extent possible within an acknowledged framework of ethics and good medical practice.

With infertility on the increase as a result of irregular lifestyles and late marriages, more and more couples are opting for assisted reproductive technology (ART) or adopting children. ART has a 40 percent safe success rate. In India, ART is a $30 billion industry with over 3000 clinics spread across the country. In India, infertility is the most frequent medical concern among couples in their 30s and 40s. This will be the defining moment in resolving the ethical and legal difficulties surrounding IVF, clearing the path for IVF to flourish in India.

IV. LEGAL FRAMEWORK

The law, in general, does not recognize the procreative interest of IVF litigants. As a result, no matter how terrible the injury is, IVF plaintiffs cannot recover from procreative injury. There are currently no tort legal theories that cover the losses associated with the new technology. Aside from specific state legislation for their protection, there is no unified law establishing legal theory for dissatisfied IVF patients. However, there have been times when courts have deviated from the general rule and granted a claim.

Traditional contract and tort theories have frequently been applied to this new technology by the courts. Indeed, many creative legal minds have proposed recovery theories based on the intentional infliction of emotional distress or even the loss of property rights. The track record for success is skewed. The most prevalent claim is for the provider’s breach of contract or professional negligence.

• CONTRACTUAL BREACH

“Emotional distress” and “property loss” are not the same as “ breach of contract” claims. Breach of contract, unlike torts, is not a personal injury caused by another’s unjust actions. It is a breach of an implied contractual obligation. Unless a doctor warrants the consequences of his care, as in Itskov v. N.Y. Fertility Inst.[5], where the doctor breached the surrogate parenting contract, medical errors are usually treated as torts rather than breaches of contract.

• EMOTIONAL DISTRESS-RELATED INJURY CLAIMS FAILED

In Harnicher v. University of Utah Medical Center[6], David and Stephanie, who were infertile, chose a donor who looked like David. The clinic changed the donors. The couple had three children, none of whom looked like David. The Harnichers were upset by the clinic’s carelessness. They struggled to come up with the legal foundation on which to initiate a lawsuit. They had not been hurt physically. They suffered no financial losses above what they had anticipated.

They claimed emotional discomfort in the absence of a better option and were unsuccessful in court. Recovery for intentionally inflicted mental distress without accompanying bodily injury is prohibited under common law.

• PROPERTY LOSS CLAIMS CAN BE SUCCESSFUL

Property loss has also been claimed by IVF claimants. Three women embryos were mistakenly lost or destroyed joined as plaintiffs in Frisina v. Women & Infants Hosp. of R.I.,[7] alleging injury as a result of being deprived of their property- their embryos. The suit was allowed to proceed by the court. Given the unique nature of IVF, the court even allowed motional grief claims to be attached to the loss of “irreplaceable” property. In Frisina’s case, the court determined that the plaintiffs were claiming compensation for the physical loss of their pre-embryos, not for the loss of the prospect of pregnancy, as the defendant claimed. The court agreed with plaintiffs that recovery for emotional distress damages based on the “loss of irreplaceable property,” the loss of their pre-embryos, was admissible under the ruling of the Rhode Island Supreme Court. As a result, the defendant’s petition for summary judgment on the issue of emotional distress caused by the loss of priceless goods was denied.

• PATIENT PHYSICAL HARM

Plaintiffs in IVF cases are protected by the law from physical harm. IVF claimants might seek relief if they can prove even a slight kind of physical injury caused by their doctor’s carelessness. The mere act of surgery, on the other hand, is not regarded as sufficient for physical harm. Two plaintiffs filed a lawsuit, claiming that the IVF process caused them physical harm. They maintained that both the extraction of eggs and the implanting of embryos were unpleasant surgeries that should be compensated. The plaintiffs’ claims were dismissed by the court because they agreed to the surgery’s “injury.”

United Hospital v. Creed.[8] The action would have survived if the doctor had made a surgical error that resulted in other physical harm.

V. HOW SAFE IS IVF IN THE LONG RUN?

Although IVF is usually thought to be a safe treatment, there are certain hazards associated with it. Because IVF is a medical procedure, there is a potential that it can cause adverse effects, the most serious of which might be ovarian hyperstimulation syndrome. When the ovaries produce too many eggs, this occurs. Multiple pregnancies can occur as a result of IVF since more than one embryo is implanted in the uterus. According to one study, roughly 30% of IVF treatments result in multiple pregnancies. IVF is also more likely to result in an ectopic pregnancy.

VI. THE FOLLOWING ARE THE HAZARDS AND OBSTACLES ASSOCIATED WITH IVF:

• REPROGENETICS

Reprogenetics is one of the problems of IVF. As scientific knowledge of genomics grows, we may be able to gain access to our personal genetic information. People may start contemplating reprogenetics alongside IVF in the future since it will allow them to change the DNA of embryos before transferring them into the uterus. It will assist them in influencing the embryo’s specific traits.

It may first aid in the prevention of genetic problems, but it can also be employed in other ways. It has the potential to cause social division and discrimination.

• FINANCIAL DIFFICULTIES

IVF treatments are incredibly expensive, and for many people, they are becoming a financial danger. The cost of IVF treatment in India ranges from 1.5 lakhs to 2.5 lakhs, which can be prohibitive for many couples considering this treatment. With a success rate of roughly 40%, the couple choosing for this procedure should be covered by insurance. However, insurance companies do not fund this treatment because insurance only covers the aftermath, not the planning. Fertility treatments are not covered by insurance because they are not illnesses.

VII. SUGGESTIONS

The following are some suggestions for overcoming the obstacles of IVF:

1. Insurance coverage should be provided to those who choose this treatment because it is pricey and can put a strain on the couple’s finances. For many couples, paying out of pocket is not an option because the success rate of IVF is approximately 30 to 40%.
2. The state should ensure that frozen embryos are used properly because it is wrong to kill them because science considers embryos to be individual, and the state should also set a time restriction for their usage.
3. When it comes to reprogenetics, an intervention needs to be present for them to be legally accepted.
4. Intervention is necessary for the well-being of society and future generations, as reprogenetics has the potential to split and divide society.
5. Marketing and trafficking of embryos should be prohibited, and appropriate criteria should be established.

VIII. CONCLUSION

In the previous century, IVF has become one of the most extensively used and successful medical methods. While IVF has given hope to millions of infertile couples, it has also raised new ethical, legal, and societal issues that society must address. Many countries have enacted legislation to govern various parts of in vitro fertilization. What rules and standards should be in place for IVF monitoring, social inequalities that may arise from economic problems to IVF, genetic testing, emerging clinical research that has improved embryo and gene survival when cryopreserved, and a right of people to their genetic offspring in the context of gamete or embryo donation are all aspects of IVF that will become increasingly important in the future.

However, the majority of the ethical and legal issues around IVF have yet to be addressed. To improve access to care, society must reconcile how to support IVF responsibly and equitably. Furthermore, in future social and legal discussions, the plethora of unresolved concerns surrounding gamete and embryo donation must be addressed in greater depth.

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[1] Overview- In vitro fertilization (IVF) – Mayo Clinic

http://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/home/ovc-20206838

[2] Edwards RG, Steptoe PC, Purdy JM: Establishing full-term human pregnancies using cleaving embryos grown in vitro. Br J Obstet Gynaecol 87:737, 198

[3] Sweeney WJ, Goldsmith LS: Test tube babies: medical and legal considerations. J Leg Med (Chicago) 1:1, 19

[4] Bharadwaj, A. (2016). The Indian IVF Saga: A contested history. Reproductive bio-medicine and Society Online, 2, 54-61

[5] 782 N.Y.S. 2d 584, 587 (N.Y. Civ. Ct. 2004)

[6] 962 P. 2d 67, 68 (Utah 1998)

[7] 2002 R.I. Super. LEXIS 73 (R.I. Super. Ct. 2002)

[8] 600 N.Y.S. 2d 151 (N.Y. App. Div. 2d Dep’t 1993)

Image: https://www.healthline.com/health-news/children-born-via-ivf-face-higher-health-risks