DISPUTES BASED ON CUSTODY OF EMBRYOS & ALTERNATIVE DISPUTE RESOLUTION AS A SOLUTION BASED TOOL

- Soumya Singh, Kirit P. Mehta School of Law, NMIMS, Mumbai

Introduction

Bioethics based disputes have been on the rise in the recent years. One of the most ethically challenging bioethics-dispute is related to the custody of embryos – either between the intended parents and donors, or between the intended parents themselves! Such disputes are extremely delicate in nature. A dispute over the possession of something formed of their own genetic material is equally balanced between both the parties involved, and thus, is both sensitive and personal to them. In this article, I will be discussing the custodial dispute of the embryos between the parents. Further, I will be examining the solution mechanism to deal with these issues. The need for the same is also contemporary as a recent case of Solapur Fertility Centre sheds light on the varying nature of disputes that can arise regarding the custody of embryos.

Current relevance

India’s Assisted Reproductive Technology Regulatory Bill, 2020 brings with itself a whole new domain of bioethics with ART, gametes, embryos and other related factors. While a lot of emphasis on codes and regulations is observed and their contravention or penalty measures are also discussed; understanding the whole picture and looking for solutions to deal with probable consequences of aforementioned disputes must also be looked into. This is because cryopreservation of gametes and embryos by the ART banks is one of the main objectives of the legislation. To achieve the same, challenges related to cryopreservation/ cryopreserved embryos and their custody related issues and disputes are crucial to decipher.

In the Solapur Fertility Centre Case the intending father died, and the mother consented to ‘destroying the cryopreserved embryos’. The family of the deceased did not take to this well and contested a case against the wife since either of the sisters of the deceased were willing to be surrogates (even without the consent of the wife). A final decision is pending as the Division Bench of the Bombay High Court has decided to hear the contentions of the parties academically. However, enough is brought forward to highlight the sensitive and complex nature of such bioethical disputes!

Various permutations and combinations within the given ambit of dispute, like in the discussed case, further strengthens the need to thoroughly look into the scope of solution. Especially, given the opportunity to concretize it through the upcoming and much-awaited ART Bill.

Discussion on resolution methods

Many suggest discussion on clauses — related to number of embryos, what will happen to the extra embryos - storing or discarding them? What will happen in case the couple or the contracting parties split and in the case of future disputes arising regarding the subject matter? — before entering into such contracts can go a long way in avoiding conflicts.

The main reason behind this can be attributed to the human nature of putting up a fight for anything that they associate with their identity. This is observed in the cases involving custody of children; one’s genetic relation is linked to their identity over which a bundle of emotions is also wrapped. Also, an embryo is a stage of the life cycle and may develop into a child. Thus, delineating the bond, or giving up the right to fight based on a few contractual clauses don’t hold strong as solution mechanisms.

The difference in claims and intention of utilization attack the other party’s take on the ‘ethically ambiguous’ nature of the subject matter and therefore substantiate the pressing need to find a way to address these conflicts or disputes. Here, the ethical ambiguity is implied with respect to the decisions to be taken with regard to the embryo - whether to store, discard, or donate them? adoption of which method would be ethically sound? etc.

The issue becomes more delicate considering its sensitive nature adding onto the issues like non-cooperation of the parties, complicated court procedures where parties begin character assassination, discrediting the other party through often unnecessary discoveries and other processes that merely elongate the dispute with no concrete solution in sight.

This is highly problematic since the people who have the resources to keep up the fight can do so. But, if a party does not have the necessary resources, then they may have to lose or quit unwillingly. This is not a permanent way of solution to such sensitive disputes.

Contractual provisions, as mentioned above, are nonetheless a good start. However, they need additional support.

Since the ethically complicated and sensitive nature of the issue has been substantiated, and the need of axillary support to contractual clauses is delved into, let’s look into an analogy to come up with a solution.

Alternative Dispute Resolution – Negotiations & Mediation as solution tools

When looking at the complete picture, dispute related to embryos can be related to that of child custody disputes in divorce cases, i.e., an analogy can be derived. Acting upon this, it is noteworthy that alternative dispute resolution (“ADR”) has been highly recommended in sensitive family matters and related disputes. The same approach may help build a better way of resolving the ethically complicated dispute in discussion. ADR methods like ‘mediation’ have been referred to as a beneficial tool in resolving such cases!

Mediation is covered by a neutral intermediary, mediator, who resolves the dispute – mediates the causes of conflict to help the parties arrive at station of understanding aimed at amicable resolution. The benefits of the process are that it’s shorter, quicker, and therefore a less expensive affair than court procedures.

This immediately makes it a better approach to deal with the issue at hand. The qualities of it being short and quick help limit the extension of an emotionally and mentally draining dispute. It can help in reducing the stress and tension surrounding the matter, considering the analogy is maintained. It can definitely reduce the ‘drama’ and the unnecessary elongation of procedures which are often unrelated and redundant. These qualities also help make the process cheaper/ less expensive comparatively. This is extremely important due to the expensive nature of the Assisted Reproductive Technologies and related procedures (in-vitro fertilization, artificial insemination, cryopreservation etc. depending on the need on a case-to-case basis) that have already been involved in development of the embryo and have created a financial burden on the intending parents.

While there are financial, economic, and time-saving benefits of mediation, the human-touch or the emotional angle in such sensitive matters may also aid the dispute resolution and help deal with these types of disputes with much more ease.

Child custody matters in cases of divorce proceedings also encourage child custody mediation. This has proven to be supportive in dealing with such sensitive family issues and matters with lasting impact. The discussions in these meetings are confidential, and the surroundings are calm and non-adversarial in nature. This will enable the parties to hear each other’s concerns and take joint steps to resolve the issue.

Mediation, as a conflict-resolving tool, can definitely go a long way in addressing such unique, sensitive, and personal matters.

More than often, mandatory informal negotiations between the parties (the intending parents) have been suggested so that entering into contract, including personalized provisions in such contracts and later dealing with any resulting disputes becomes easier.

Conclusion

The substantiation of solution tools of mediations and negotiations imply a positive direction in conflict resolution of such sensitive disputes.

The discussion above can also be applied to the Solapur Fertility Centre’s case. A reasonable mediation between the wife and the deceased’s family could have opened up a discussion and enabled a platform to share both the parties’ wishes. This may have helped in limiting the situation from turning hostile, provided an opportunity to come to a reasonable decision regarding the embryos, and prevented the litigation and other complexities.

This is just one example. As discussed, with the implementation of ART Bill 2020 in the near future and considering the rapid increase in the trend of egg-freezing in India, nuanced discussions regarding addressing these issues and the conflict resolutions need to be concretized.