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Sweta Pahari   27 November 2015

Single mother with donor sperm, husband unaware

A couple got married three years ago. Soon after marriage the couple started trying for a baby. But inspite of their sincere effort of 10 months, the wife failed to conceive. Medical reports of both the husband and the wife were normal. Henceforth, 10 months after marriage the wife was thrown out of her matrimonial house on charges of infertility. Her husband wanted mutual divorce, to which she didn't comply. Inspite of the wife's and her parents' repeated requests to restore her marital life, the husband and his parents were hell-bent upon divorce and disallowed her entry to her matrimonial house.

 

 

After a series of failed reconciliation talks, the wife filed for Restitution of Conjugal Rights. In retaliation the husband filed a Divorce petition on grounds of cruelty, desertion and infertility. The cases are still in-progress at a lower court, but everything is going in the wife's favour till date. Evidences and medical reports disprove and dismiss all of the husband's allegations. However, the husband is still firm on his decision of divorce. He adamantly declared infront of the open court that even if he loses his case, no court in the world and no law in the world can force him to restore physical relationship with his wife.

 

 

Kahani me Twist: Heavily upset by her husband's adamant attitude, the wife decided to opt for single motherhood with donor sperm via Artificial Reproductive technique IVF. The lady is in her mid-thirties and thought it futile to waste further time over legal battle with a reluctant husband. And yes, SHE has CONCEIVED by IVF!! She is now 5 months pregnant. The sperm was collected by the hospital authorities from a sperm bank from an anonymous donor. But the lady's offense is, at the hospital she had declared herself as "unmarried" so that she doesn't require her husband's written consent to avail the donor sperm. [Unmarried, divorced and widowed ladies are eligible for single motherhood with donor sperm without anybody's consent, but married and separated ladies need their husband's consent to use donor sperm.] This lady's husband is still unaware of her pregnancy since they are separated long back (after 10 months of marriage). The court is also unaware of her pregnancy. Likewise, the hospital authorities are unaware of her true marital status.

 

 

The lady now wants to give mutual divorce to her husband and raise the child as a single mother without any paternal identity. But as we all understand, this lady is now in a grave danger both from the law of the land and from the hospital authorities (in case they come to know the truth), leave alone her husband. Naturally, she is quite concerned and concerned us too with a series of disturbing questions, some listed below. She is one of our office colleagues and I have known her as a very sincere, hard-working and honest lady all these years.

 

 

1. What kind of legal danger, defamation and penalty do you lawyers foresee her to go through?

2. She knows her divorce will be confirmed if her offense is out and she is now infact keen to get divorced. But what else more punishment can she expect from the marital front? 

3. What legal steps can the hospital authorities take against her once they learn the truth? Does her action come under criminal conspiracy?

4. Can she get imprisoned?

5. She is most worried about this query - Will the birth certificate of the child get stamped as "CORRUPTED", by court order? This can destroy the entire future of the child. Or nothing like this ever happens/happened? The lady is just too worried?

6. Similarly, will all the medical documents of the lady in relation to her IVF and pregnancy get stamped as "CORRUPTED", by court order?

 

 

P.S.: Please restrict the discussion only within legal boundaries. Don't include social issues like what will people and society say, etc.



 16 Replies

SAINATH DEVALLA (LEGAL CONSULTANT)     27 November 2015

Swetha, Are U a lawyer or a law student ,UR previous post was also similar.

www.lawyersclubindia.com/forum/Are-non-married-indians-eligible-for-sprem-ovam/donation/clarify

Then I shall come into the legalities.

Anand Bali Adv. (Advocate Solicitor & Consultant)     27 November 2015

I too have some doubts on your many be "cooked" story. Sweta as it has been rightly pointed out by our Mr Sai Nath Devalla.Come true by sending PM to me, I shall rightly advise you what should you do but only if you come clean handed. 

Sweta Pahari   27 November 2015

@Yentene Banta

I don't think IVF procedure needs to undergo any huge legal formalilities.  The hospital authorities are totally unaware of the lady's true marital status, that is, separated. The lady has told them (infact signed on hospital documents) that she is unmarried. It is absolutely legal in India for an unmarried lady to become a single mother with donor sperm. Thus hospital authoroities can in no way be held responsible for any corruption. (By "hospital" here I mean registered fertility clinic where only artificial reproductive techniques like IUI, IVF are practised).

 

 

@Sainath Devalla,

I am an IT professional working in an MNC. This incident is one of my office collegues.

 

@Anand Bali,

It is not possible for me to know whether the lady has practised any wrong-doing other than concealing her marital status to the doctors. I just posted the version she told me. So nothing specific for me to PM you.

 

 

@All,

I see a huge article on adultery. I don't think the lady can be convicted of adultery here because there has been no s*xual contact or relationship with any man. IVF doesn't need s*xual contact. It is artificial fertilization. Collection of donor sperm was done by hospoital authorities only following legal procedures. She has all the documents in support of this.

Prasad (Systems Engineer)     27 November 2015

Hi Sweta... 

 

It is hard to believe that a woman has shared such a sensitive personal story with a office collegue.

 

That apart.

 

There is a room for doubt that your collegue is trying to hide adultery in the name of IVF procedure.

 

That apart. 

 

Your collegue has bought all troubles in the world for her willfully.

 

More than herself, she has put the yet-to-be-born child in a big mess.

 

The husband is perfectly right that "no court in the world and no law in the world can force him to restore physical relationship with his wife."

 

Once the husband has taken such a stand, if your collegue really "thought it futile to waste further time over legal battle with a reluctant husband", she should have pursued mutual divorce before going for IVF.

 

Now, she has clearly violated the law and hence her husband can sue for his wife's offense that she hide her marital status.

 

But this can help him prove her wife's cruelty and get divorce easily.

 

And hospital can file a cirminal case against your collegue.

 

 

So, there is a suggestion that your collegue can abort the child and pursue mutual divorce.

This will avoid mess for everyone involved especially for the yet-to-be-born child.

 

 

Or Yentede Banta has a good suggestion for your collegue.

 

"
This is India.

 

You need to think what story you will cook to tell the baby which willl be delivered in some time.  Some more lies.
 

Its better that you stay silent, your husband will get divorce, you marry someone else stating that you have a kid out of wedlock.
 

Your story, if you tell to new person who you want to get married, will only lead to more problems.  SO change the story before you re-marry.  
"

 

More than planning for legal consequences, it is better to prevent them in first place.

SAINATH DEVALLA (LEGAL CONSULTANT)     27 November 2015

Actually UR query attracts academic interest than reality.

Well let me presume it is real.Section 497 ipc does not attract her act.Hiding the fact that she is married leads to suppression of material facts about marital life,though living separately.The hospital will not indulge in blind process and there will be many legalities involved in it.As she is not divorced from her husband,she can be prosecuted by law on the advice of the husband for breaking marital cords.Hence as of now the husband is at an advantegious position legally.

Sweta Pahari   28 November 2015

Originally posted by : Prasad

 

 

It is hard to believe that a woman has shared such a sensitive personal story with a office collegue.

 

 

 

 

How can a pregnant lady hide her motherhood and move around in the office? She needs to apply for maternity leave and needs to submit a copy of her doctor's prescripttion to the HR department for leave approval. She can't resign from a promising career to hide herself, right? At least not at this age. We all knew the lady was married; many colleagues infact attended her wedding three years back. Now her doctor's prescripttions reveal terms like AID (Artificial Insemination by Donor), husband's name kept blank and her name is prefixed as 'Miss XYZ' instead of 'Mrs. XYZ'. How can she escape the truth? She can hide herself from the entire world, but not at her workplace where she needs to submit all necessary documents (including a copy of child's birth certificate post-delivery) to avail maternity leave.

 

 

 

Originally posted by : Prasad

 

Your collegue has bought all troubles in the world for her willfully.

 More than herself, she has put the yet-to-be-born child in a big mess.

 

 

 

 

Very true. Totally agree.

 

 

 

Originally posted by : Prasad

 

Once the husband has taken such a stand, if your collegue really "thought it futile to waste further time over legal battle with a reluctant husband", she should have pursued mutual divorce before going for IVF.

 

 

 

 

 

Very justified question. I also asked the same question to the lady, to which she reasoned somewhat as follows:

 

"I am lucky that I have conceived by IVF, that too in the first attempt itself. But IUI/IVFs are no magic, there is no guarantee in such procedures. The overall success-rate of such artificial reproductive techniques is very less. Take-home baby percentage is only 15-20%.  A huge number of couples go home empty-handed. This statistic stands true even in the best fertility clinics around the world, including developed countries. Now if I had divorced my husband prior to going for IVF and then failed to conceive, I would have been a double-loser. The disappointment would have been too much for me to take. It would have been a gamble I could never risk."

 

 

 

 

Originally posted by : Yentede Banta

 


You need to think what story you will cook to tell the baby which willl be delivered in some time.  Some more lies. 

 

 

 

 

The lady demands she will hide nothing from her child. The child will know the truth right from the beginning. She says they will have open discussion on everything, starting from her marriage to separation to IVF with donor sperm hiding marital status to her would-be-divorce. She believes that being aware of the truth since kindergarten age would create less emotional impact on the child than stumbling upon the truth at teenage or adulthood.

 

Of course, the lady has to maintain her “unmarried” status while admitting the child to school, to keep herself in sync with her medical records, pregnancy records and the child’s birth certificate (where father’s name will be blank).

 

 

 

Originally posted by : Yentede Banta

 

Its better that you stay silent, your husband will get divorce, you marry someone else stating that you have a kid out of wedlock. 

Your story, if you tell to new person who you want to get married, will only lead to more problems.  SO change the story before you re-marry.  

 

 

 

 

 

This one is a poor suggestion. Firstly, the question of remarriage doesn’t arise. The lady is determined to stay single lifelong. Secondly, a child born out of donor sperm to a single mother will never bear the donor’s name or signature in his/her birth certificate (Sperm donation is anonymous). Nor will the lady’s current husband agree to sign as father in the child’s birth certificate. How can the mother claim she has the child out of wedlock?

 

 

 

 

Originally posted by : SAINATH DEVALLA

 

 

The hospital will not indulge in blind process and there will be many legalities involved in it.

 

 

 

 

 

Once a lady declares herself as ‘unmarried’ on hospital documents, the hospital should bear no obligation to her single motherhood. No further legalities are involved on hospital’s behalf since she is doing nothing illegal, as far as they are aware. (If you are aware of any further hospital legalities, please describe). Yes, they required written consent from the lady’s guardian (parents) prior to administering her anaesthesia for ovum collection/egg retrieval surgery. (Taking written consent from patient’s legal guardian before administering anaesthesia is mandatory to ANY surgery, nothing IVF-specific.)

 

 

Sweta Pahari   28 November 2015

All in all, the queries asked in the first post of this thread still lie unanswered.  Kindly share your thoughts.

 

Originally posted by : Sweta Pahari
1. What kind of legal danger, defamation and penalty do you lawyers foresee her to go through?

2. She knows her divorce will be confirmed if her offense is out and she is now infact keen to get divorced. But what else more punishment can she expect from the marital front? 

3. What legal steps can the hospital authorities take against her once they learn the truth? Does her action come under criminal conspiracy?

4. Can she get imprisoned?

5. She is most worried about this query - Will the birth certificate of the child get stamped as "CORRUPTED", by court order? This can destroy the entire future of the child. Or nothing like this ever happens/happened? The lady is just too worried?

6. Similarly, will all the medical documents of the lady in relation to her IVF and pregnancy get stamped as "CORRUPTED", by court order?

 
 

 

Democratic Indian (n/a)     28 November 2015

Originally posted by : Sweta Pahari

1. What kind of legal danger, defamation and penalty do you lawyers foresee her to go through?

Legal danger for which crime? Is IVF a crime or offense? I would like to read the enactment that says IVF is a crime or offense. IVF is not equal to adultery. Adultery needs s*xual intercourse, where is the act of s*xual intercourse in IVF? Most importantly woman does not go to jail for adultery under 497 IPC, it is the adultrous man who goes to jail. Where is the act of defamation done by wife? Is filing RCR in court of law a defamation? I doubt. Yes the intention of RCR and IVF are contradictory. Husband may try to get legal mileage out of this. Probably that act of shouting in the court was well designed to emotionally induce you into something like adultrous act or IVF so that he would get advantage in divorce case and prove intention of RCR is for misleading the court.

2. She knows her divorce will be confirmed if her offense is out and she is now infact keen to get divorced. But what else more punishment can she expect from the marital front?

May keep IVF secret till she gets divorce so as to not needlessly complicate matters further. Let the husband file the cases he wants for IVF and let your advocate handle the matter.

3. What legal steps can the hospital authorities take against her once they learn the truth? Does her action come under criminal conspiracy?

Hospital has no business to interfere in personal matters of its customers. On the contrary privacy and confidentiality of patient data and treatment is expected from hospitals. So nothing much to worry on this from hospital.


4. Can she get imprisoned?

Imprisioned for what crime?

5. She is most worried about this query - Will the birth certificate of the child get stamped as "CORRUPTED", by court order? This can destroy the entire future of the child. Or nothing like this ever happens/happened? The lady is just too worried?

Corrupted by what? The birth certificate is only certifying a fact, a truth. Courts are to do justice and not to do injustice. Justice is truth in action. In any case if husband files any case, you will be given enough oppurtunity by court to be heard. So stop worrying.

6. Similarly, will all the medical documents of the lady in relation to her IVF and pregnancy get stamped as "CORRUPTED", by court order?

Same as previous reply.


 P.S.: Please restrict the discussion only within legal boundaries. Don't include social issues like what will people and society say, etc.

I have not been able to understand the legal, bio s*xual or social wisdom or hurry in going for IVF. If possible may make the husband repeat what he said and make an instant audio visual recording of the same. May tell your advocate to make that audio video a part of the case records in court so that you get divorce at the earliest. Since she has already gone for IVF, mutual divorce is also an option, unless prolonging the matter in court is the intention.

P. S. Please do not consider any of my above replies as legal advice or guidance on how to fight your case. Your advocate dealing with your case is your best guide. Or sit with any advocate and discuss this matter.

 

SAINATH DEVALLA (LEGAL CONSULTANT)     28 November 2015

To conclude with,I would like to state that the wife is answerable only to her husband.Though they are separated for various reasons and as they are not divorced officially,she cannot act on her own for begetting a child through medical technology and not adultery.( THE TERM ADULTERY DOES NOT EXIST IN THIS CASE)

Whatever it is, she has misled the hospital with false personal particulars and the husband has every right to proceed legally against her.

Sweta Pahari   01 December 2015

Everyone here seems so confident that the hospital/Artificial Reproductive Technique (ART) clinic won’t take any step even if the lady gets caught. I spoke to the lady (she is also following this thread) and she explained me how these ART clinics work –

 

All the registered ART clinics (practicing IUI, IVF, ICSI, egg donation, embryo donation, etc) and registered sperm banks and surrogacy centers in India are bound by the guidelines setup by Indian Council of Medical Research (ICMR). You can go through ICMR guidelines online if you please, at https://www.icmr.nic.in/About_Us/Guidelines.html

 

 

Now, it is mandatory for all registered ART clinics and sperm banks and surrogacy centers in India to share all their success and failure reports and patient details annually with ICMR. The purpose is to maintain vigilance over performance and quality of these ART clinics. Clinics committing unethical/illegal practices and/or unable to produce nominal success rate over a certain number of years might come under ICMR scanner and may even lose their license if ICMR so decides. Similarly sperm banks also have to share their donor details annually with ICMR. Apart from maintaining quality, the purpose here is to save donor details in ICMR database so that a child born with donor sperm can track down his/her biological father after attaining 18 years of age if he/she so desires, even if the sperm bank closes down by then. Thus ART clinics might close down, sperm banks might pull down their shutters, but ICMR will exist as long as Indian govt exists, with details of all patient, donor and newborn child born via ART stored in its database.

 

 

Now, coming to our concerned case. The husband will definitely come to know of the lady's childbirth (from common relatives), be it before or after divorce. Thereafter he/his lawyer can easily track down her hospital name and other medical details from her workplace, go to that hospital/ART clinic and spill the beans. The hospital authorities will then definitely lodge a criminal complaint/FIR, if not, at least lodge a general diary in the local police station against the lady. It is common sense that they will do it for sure, for their own safety, else they themselves will be considered part of the conspiracy and face risk of license cancellation. Most alarming, the hospital authorities will then definitely notify ICMR about the lady's illegal action. And then goodness knows what steps will ICMR take against the lady!

 

 

As per our common sense, there is nothing much to fear from the husband. He will be more than happy just to get the divorce, toss the lady off his shoulders and move-on in life. All he will do is inform the hospital authority; the consequent course of legal/criminal actions will be taken up by the hospital & the ICMR. These are all our apprehensions based on simple common-sense, we are not aware of the exact legal guidelines and punishments applicable in this context.

 

 

Hence requesting the learned people here, if possible can anyone please throw some light stating what is the minimum and maximum punishment the lady might face if ICMR sues her for intentionally concealing her marital status and violating ICMR guidelines?  If ICMR sues her, under which section of IPC (or any other domain) will they sue her? (Please don’t bring adultery here. There can be no adultery with an anonymous sperm donor). The lady seems most distressed about one concern: Whether the court or ICMR may order to get the birth certificate of the child and/or mother's medical reports stamped as “CORRUPTED”?? Or write something disgraceful on those documents??

SAINATH DEVALLA (LEGAL CONSULTANT)     01 December 2015

U URself have given the legalities involved.

Democratic Indian (n/a)     02 December 2015

Originally posted by : Sweta Pahari

Now, coming to our concerned case. The husband will definitely come to know of the lady's childbirth (from common relatives), be it before or after divorce. Thereafter he/his lawyer can easily track down her hospital name and other medical details from her workplace, go to that hospital/ART clinic and spill the beans. The hospital authorities will then definitely lodge a criminal complaint/FIR, if not, at least lodge a general diary in the local police station against the lady. It is common sense that they will do it for sure, for their own safety, else they themselves will be considered part of the conspiracy and face risk of license cancellation. Most alarming, the hospital authorities will then definitely notify ICMR about the lady's illegal action. And then goodness knows what steps will ICMR take against the lady!

Lodge criminal complaint for what crime? What is illegal in getting IVF done for enjoying reproductive rights? Husband will file complaint that he has filed divorce and now wants to deny her the reproductive rights?

As per our common sense, there is nothing much to fear from the husband. He will be more than happy just to get the divorce, toss the lady off his shoulders and move-on in life. All he will do is inform the hospital authority; the consequent course of legal/criminal actions will be taken up by the hospital & the ICMR. These are all our apprehensions based on simple common-sense, we are not aware of the exact legal guidelines and punishments applicable in this context.

Unfortunately common sense is not common in this world. I do not think going for IVF is a crime. If she has done some "crime" what is that crime you are so worried about? Where is the legal injury she has done to hospital or ICMR by not disclosing she is legally married?

Hence requesting the learned people here, if possible can anyone please throw some light stating what is the minimum and maximum punishment the lady might face if ICMR sues her for intentionally concealing her marital status and violating ICMR guidelines?  If ICMR sues her, under which section of IPC (or any other domain) will they sue her? (Please don’t bring adultery here. There can be no adultery with an anonymous sperm donor). The lady seems most distressed about one concern: Whether the court or ICMR may order to get the birth certificate of the child and/or mother's medical reports stamped as “CORRUPTED”?? Or write something disgraceful on those documents??

Guidelines are not equal to law. The hospitals and ICMR has lot more important work to do than chasing their customers in court for no reason. Again you are repeating the questions  about CORRUPTED which has been well answered in my previous post.

 

Sweta Pahari   03 December 2015

Originally posted by : Democratic Indian
 


<<Democratic Indian>>: Lodge criminal complaint for what crime? What is illegal in getting IVF done for enjoying reproductive rights? Husband will file complaint that he has filed divorce and now wants to deny her the reproductive rights?

 

.........................

........................

 


Unfortunately common sense is not common in this world. I do not think going for IVF is a crime. If she has done some "crime" what is that crime you are so worried about? Where is the legal injury she has done to hospital or ICMR by not disclosing she is legally married?

 

 

 

<<Sweta>>:  The crime is: Inspite of being married, she has undergone IVF with donor sperm without husband's consent. That too by supressing her true marital status to the fertility clinic. Only SINGLE women are eligible for AID (Artificial Insemination by Donor) without husband's consent. "Single" here means never-married, divorcee or widow. Separated women come under "Married" category.

 

 

Husband's complaint won't stand any merit. Agreed. He won't officially complain anywhere either. All he will do is tip-off the fertility clinic about her true marital status, in a bid to harass her. The fertility clinic would then pursue all legal/criminal steps TO SAVE THEIR OWN HEAD. They will have their own fear-quotient. They will be afraid that if ICMR somehow comes to know that the clinic has performed IVF with AID (Artificial Insemination by Donor) on a married lady without her husband's consent, ICMR might cancel their license. So to safe-guard their business and to prove that they are not involved in the cospiracy it will be the hospital authority’s legal compulsion to lodge complaint against the lady and inform ICMR about the corruption. And subsequently if ICMR (read Indian govt) decides to prosecute the lady for voluntarily violating ICMR guidelines, God save her!

 


<<Democratic Indian>>: Guidelines are not equal to law. The hospitals and ICMR has lot more important work to do than chasing their customers in court for no reason. 


 <<Sweta>>: 
ICMR has not created its guidelines for timepass. Violation of ICMR guidelines can be prosecuted under sections 193, 196 and 228 of IPC and under section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

Please refer the link https://www.icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf for details.

 

 

 

Sweta Pahari   03 December 2015

Originally posted by : Yentede Banta
Divorce, a ex husband tyring to nail you down, society, your initial lie to the fertility clinic, you  wanting another partner, what story will you tell that one?

 

 

Inspite of repeated assertions that the lady is looking towards single motherhood, why are you so bent upon that she wants another partner?

 


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