SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

The law is essentially undeveloped in relation to IVF and ART in the research countries, an
area which requires regulation. In the context of “an exponential growth of infertility clinics
that use techniques requiring handling of spermatozoa or the oocyte outside the body, or the
use of a surrogate mother”, in India, for instance, the Assisted Reproductive Technologies
(Regulation) Bill is being proposed, which aims to “regulate the functioning of such clinics to
ensure that the services provided are ethical and that the medical, social and legal rights of
all those concerned are protected.” The bill “details procedures for accreditation and
supervision of infertility clinics (and related organizations such as semen banks) handling
spermatozoa or oocytes outside of the body, or dealing with gamete donors and surrogacy,
ensuring that the legitimate rights of all concerned are protected, with maximum benefit to
the infertile couples/ individuals within a recognized framework of ethics and good medical
practice.” 124
1.8 Same-sex marriage
As noted earlier, the Constitutions of the research countries recognize the rights to life and
equality and the Supreme Court of Nepal has used these provisions to recognize equality for
Lesbian, Gay, Bisexual, Transgender and Intersex persons and has directed the government to
conduct a study related to same sex marriage. Some of the Constitutions also refer to families
and marriages. Under the Indonesian Constitution, “every person shall have the right to
establish a family and to procreate based upon lawful marriage.” 125 The Thai Constitution
makes several references to family rights but these are not defined. However these provisions
or indeed the broader equality and other rights provisions have not been used in these
countries to permit same-sex marriages or civil unions. Marriage laws in the research
countries range from secular codes to personal and custom laws. None of these recognize
same-sex marriage.
Indeed, in Sunil Babu Pant v. Government of Nepal the Supreme Court of Nepal issued
directives to the government related to same sex marriage. Based on the request made by the
petitioners with regard to this issue the court observed that it was an inherent right of an adult
to have marital relations with another adult as long as there was free will in entering into such
a relationship. The court noted that marriage between same-sex persons has been recognized
in some countries and it was “essential to carry out a thorough study and analysis of
international instruments relating to the human rights, the values recently developed in the
world in this regard, the experience of the countries where same sex marriage has been
recognized and its impact on the society as well.”
It directed the government to form a committee comprising a physician, sociologist,
representatives of the national human rights commission, the ministry of law and justice,
ministry of population and police department and the petitioner’s advocate, which would
carry out a study on the concerned issues of same sex marriage and marital status of overall
Lesbian, Gay, Bisexual, Transgender and Intersex persons as well as the legal provisions of
other countries. The government was further directed to make legal provisions after taking a
decision in terms of the recommendations of the committee. However, since this judgment
there has been no report of progress of the committee’s functioning.
124 See the preamble to the Assisted Reproductive Technologies (Regulation) Bill available at
http://www.icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf
125 Article 28B, Constitution of Indonesia, 1945
44