LATE MARRIAGE AND DECLINING FERTILITY

Family Law 1
Submitted by:

NITUL BORAH

UID: SM012136

2nd Year & 4th Semester

Submitted to:
Thangzakhup Tombing

National Law University and Judicial Academy, Assam

1
 TABLE OF CONTENTS

TABLE OF CASES…………………………………………………………………………..

TABLE OF STATUES………………………………………………………………………..

TABLE OF ABBREVIATION…………………………………………………………………

1. INTRODUCTION…………………………………………………………………………

1.1 OVERVIEW………………………………………………………………………….

1.2 AIMS AND OBJECTIVES……………………………………………………………...

1.3 SCOPE……………………………………………………………………………….

1.4 LITERATURE REVIEW…………………………………………………………………

1.5 RESEARCH QUESTIONS………………………………………………………………

1.6 RESEARCH METHODOLOGY…………………………………………………………..

CHAPTER-2…………………………………………………………………………………

LATE (MARRIAGE) IS A CHOICE OF AN INDIVIDUAL

CHAPTER-3 ……………………………………………………………………………...

REASON FOR FERTILITY DECLINE IN INDIA AND JAPAN

CHAPTER-4………………………………………………………………………………….

THE CREATION OF NEW TECHNOLOGY FOR THE ADVANCEMENT

REPRODUCTION SHOULD BE MADE DISTINCT BY LAW.

CONCLUSION………………………………………………………………………………...

BIBLIOGRAPHY………………………………………………………………………………

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 TABLE OF CASES
1. Safin Jahan V/S Ashokan KM & others…………………………………………….

2. Usman v. Inderjeet…………………………………………………………………..

3. Biswas v. Biswas…………………………………………………………………….

4. Lamaritata v. Lucas…………………………………………………………………..

5. Doombos v. Doombos………………………………………………………………..

6. Gursky v Gursky………………………………………………………………………

7. Anonymous v. Anonymous…………………………………………………………...

8. People v. Sorenson…………………………………………………………………….

TABLE OF STATUE

Constitution of India

1951-United Nations Conventions and Resolutions

1948-Universal Declaration of Human Rights

1966-The International Covenant on Civil and Political Rights

1992-National Family Health Survey

1954-Special Marriage Act

Table of abbreviations

S.NO ABBREVIATIONS EXPANSION

1. & And

2. AIR All India Reporter

3. Anr. Another

4. Crl Criminal

5. SCC Supreme Court Cases

6. SC Supreme Court

7. Edn. Edition

8. v. Versus

3
9. Art. Article

10. W.P. Writ Petition

11. Ind Cas India Cases

12. SCR Supreme Court Report

13. Sec. Section

14. No. Number

15. Ors. Others

16. P. Page

17. ILR Indian Law Reports

18. In re In the matter of

19. N.Y. S Supreme court of New York

20. Govt. Government

21. Vol. Volume

23. UOI Union of India

24. Hon’ble Honorable

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 CHAPTER 1

Introduction:

1.1 Overview:

Marriage is not just a cultural practice suggestive of women’s status in society, but is also
linked to multiple biological, ecological, and geographical factors, each of which is crucial for
public health. Marriage is the ‘gateway’ to multiple health consequences associated with the
timing of child-birth.

Generally, the age at which a woman enters to her first nuptial life is directly related to number
of children she will bear, because it affects the length of time she will be at risk of becoming
pregnant. Of course, unmarried women may also have children, but the vast majority of
childbearing takes place after marriage, making age at marriage a valuable indicator of a
woman’s lifetime fertility.

Although till date marriage is universal in the Indian context, there are certain shifts observed
in the age at marriage, i.e., a consistent increasing trend in respect of mean and median age at
marriage over cohorts born since 1916 for males and since 1921 for females. However, the
aggregate figures relating to mean and median age at marriage show only minor changes in the
age at marriage. Moreover, an analysis of 2001 census data clearly shows that for those who
have been married for the last nine years preceding the census, marriages remain mainly
confined to higher ages as compared to those married for twenty years or more preceding the
census. Hence, it is important to look into the pattern of delayed marriages in India. Even
though it is almost impossible to come up with a general conclusion regarding the changes in
respect of any of the marriage related parameters particularly in the context of a heterogeneous
country like India.1

1
Marriage and fertility dynamics in India. (2020). Marriage and Fertility Dynamics in India.

https://dr.ntu.edu.sg/bitstream/10356/79455/1/Marriage%20and%20Fertility%20Dynamics%20in%20I

ndia.pdf?termsofuse=on&g-recaptcha-

response=03AGdBq24YBzXvqmjITqW8Kt72PQU7kp6Ah8KQ1g0c5HzT-lquqmxKEzg-

8_bWlztuHG59gi1UIGhoXoiqEbtkX8Y_cL7CMreFaQZhw9ZDJnNCvLXYXJh13v9Oa1HhLZ0OAG

ARZ1l8G6y0zVf9Z9YpSTQUJTPdhMRYBqVXLOhGhtHkHEySLOYqGzkRpKa9xhMMY8osvR-

5
1.2 Aims and objective

The aims of the project are to provide a comprehensive study that if late marriage is a choice
of an individual, can fertility and infertility be the grounds for divorce within a marriage. This
research paper tries to study late marriage and declining fertility as a socio legal perspective.

1.3 Scope and Limitation

The scope of this project is confined to a socio legal analysis based on Late marriage and
declining fertility. The studies indicates that age at marriage is a major factor associated with
fertility level and child loss and that this is especially true in the case of India, where not only
large families are the norm but also there is a low use of contraception. The main purpose of
the project is to critically examine whether age at marriage is a personal choice and if decline
in fertility is the reason behind couples parting away and finally comparative study on delay in
marriage.

1.4 Literature review:

Paras Diwan2 in his book has comprehensively discussed on the subject covering the various
aspects of both codified and uncodified law in the dimension of family law and throughout the
course of his book he has explicitly examined the contours of family law and the dimensions
attached to it exhaustively, the book provides a fair idea about the prevailing customary and
legal practice related to family law and has extensively talked about the judicial precedents
throughout in order to ensure a better understanding of the existing laws.

Embryo Freezing and Donation: Ethical-Legal Issues by Dr. Sufiya Ahmed For decades,
embryos have been successfully frozen for fertility preservation and donation. When both
partners are infertile, embryo freezing and donation is a well-established and successful kind

Ey9ZVLuvsevN0vlUyRY-xND0WNij9-eIXmLHzFW9QZdoB97ALiiVIZy2Vo7Uz6e-nVP4bAF0fb-

hSb4MLcsXXQuoX6CzxbDvnlNAewmBmoGnlM23JT-RG9izQMtjOd1YtSl0_t0MwqaF-

gwne1FFpd5X4DrpU37xPblJ-

by1GoeXejzSeYFovrOfLBg5du0d54LgxVjfRwdMfush8rm3FYkmBI0Lb3tRGs-7P4jJ1MpjNgzJWX-

TkopCoBWjyZPcXgoti&submit=true

2
Family Law 1. (2022). Paras Diwan.

6
of assisted reproduction treatment. After the transfer of embryos, the first pregnancy was
announced in India in 2009.Oocytes that have been frozen and thawed. The commercial
production and distribution of embryos has sparked a slew of ethical and moral concerns about
the rights of the unborn. The right of unborn children to know their biological parents, as well
as the moral standing of unborn children’s embryos, how to treat embryos.

In Vitro Fertilization and the Law: How Legal and Regulatory Neglect Compromised a Medical
Breakthrough by Steve Calandrillo.3The development of assisted reproductive technologies,
such as in vitro fertilization (IVF), as a technique of human reproduction is a significant
medical accomplishment. It has enabled millions of infertile and same-sex couples to have
children who were previously merely the objects of their unfulfilled fantasies. In the last
decade, live births and success rates have risen considerably, to the point where many fertility
clinics now "promise" a baby to clients who sign up. However, success is not without its
drawbacks. Although everyone is aware of the high cost, considering the high demand, only a
few dedicated individuals appear to be deterred. The increased risk of birth defects connected
with reproductive technologies is even more subtle.

1.5 Research question:

Whether late marriage is a choice of an individual?

What happens when fertility declines?

Whether the creation of new technology for the advancement of reproduction should be made
distinct by law?

1.6 Research Methodology

Researcher conducted Doctrinal type of research to collect proper data and gather appropriate

3
Calandrillo, S. (2014, September 19). In Vitro Fertilization and the Law: How Legal and Regulatory Neglect

Compromised a Medical Breakthrough. In Vitro Fertilization and the Law: How Legal and Regulatory

Neglect Compromised a Medical Breakthrough.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2498632

7
information. The use of library sources and internet sources has greatly supplemented the
research. Various books pertaining to the subject have been immensely helpful in guiding the
research. Researcher also conducted the Empirical research for collecting the data of daily time
spending on social networking sites. To ensure a quality study of the subject matter, the
researcher collected the Secondary type of data. Though primary data is very valuable and
precious; still the importance of the secondary data cannot be overlooked. So, the researcher
collected secondary data through various books, articles, journals and other sources.

8
 CHAPTER 2
LATE (MARRIAGE) IS A CHOICE OF AN INDIVIDUAL:

Marriage, a complex individual phenomenon with significant familial and social interlocks,
can be examined from several perspectives and levels. Numerous studies have discovered that
the creation of organizations is a systematic process. The most commonly observed pattern.
Marriage among similar, i.e., unions formed on the basis of shared interests. between partners
in terms of social class, education, employment, religion, and ethnicity family history, etc. It is
not an exception in India. In India, union formations are still a family affair-oriented issues
primarily influenced by societal norms Nonetheless, the aforementioned considerations play a
role. substantial impact in this regard, to the point that these elements, taken together, even
affect the timing of Marriage is the bond between two people.
United Nations (UN) Conventions and Resolutions consider “child, early, and forced marriage”
as a fundamental violation of human rights. Marriage before 18 years is considered to be a
harmful practice because it denies girls the right to the highest attainable standard of general,
sexual, and reproductive health, and to a life free from violence. Under-age marriage also
constrains evolving physical, emotional, and personal maturity required to safely and
successfully transition to adulthood. It places restrictions on opportunities in life, such as the
right to education. Under-age marriage also restricts women’s ability to fully participate in
family, socio-cultural, and civic activities. Collectively, these consequences have major
implications for public health.
Several UN agreements define parameters relating to marriage and reproduction, including
establishing a minimum allowable marriage age. Women have equal rights to men to “freely
chose a spouse and to enter into marriage only with their free and full consent”. Women also
have the right to good reproductive and sexual health. This includes a satisfying and safe
consensual sexual experience, the capability to reproduce, and the freedom to decide if, and
when, to bear a child. Access to timely and adequate health care for women and their children
is also essential. Since marriage entails adult responsibilities and also understanding of its
consequences, setting a minimum age is a legal guarantee that adult responsibilities are not
assigned to children prematurely. The age at which legal majority or adulthood is reached is

9
thus important for establishing a minimum age of marriage: Human Rights Conventions set
both at 18 years.4
By ratifying these international agreements, governments are expected to legislate a minimum
age at marriage for both sexes, ideally at 18 years. Globally, however, it ranges from 10 to 20
years, meaning legal protection is often not offered to children when the majority status of
“adulthood” is reached via marriage before 18 years. In absolute terms, only 11 countries have
established a minimum legal marriage age at 18 years without any dispensation; 73 have an
ascribed minimum age but allow exceptions below 18 years, usually for girls; and 102 have
unclear information or no established minimum marriage age.

International Perspective: Modern international notions of human rights can be traced back to
the United Nations' founding following World War II. The Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights, and the International Covenant
on Economic, Social, and Cultural Rights would be codified in the International Bill of Human
Rights, which would include the Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights, and the International Covenant on Economic, Social,
and Cultural Rights. The family is the most basic and natural unit of society, and it requires the
state's full protection. Human rights law defends everyone's affirmative right to marry and start
a family. It promotes the ideal of equal and consenting marriage while attempting to prevent
abuses that undermine these values.

Problems in India: Indian people value ego over logic in their relationships. Marriage in India
appears to be a contract between elders for the rest of their children's lives. Until now, the
majority of the country's marriages are decided by the elders. Before the wedding, the couples
are not even allowed to see each other. Although India is a secular country, when a boy or a
girl wishes to marry into another faith or change their religion for the purpose of marriage, it
becomes a national controversy. There are several religious concerns in every Indian
household, and religion takes precedence over love and understanding in relationships.

4
Marphatia, A. A. (2017). Women’s Marriage Age Matters for Public Health: A Review of the Broader Health

and Social Implications in South Asia. Frontiers.

https://www.frontiersin.org/articles/10.3389/fpubh.2017.00269/full

10
It is, in essence, a contract between the two families. In the midst of all the confusion of customs
and religions, the rights of couples who desire to marry are lost in the weight of ego and family
respect. Forced marriage and child marriage are illegal in India, and various statutes exist to
protect marriage rights, such as the Hindu Marriage Act 1955, Special Marriage Act 1954,
Dissolution of Muslim Marriage Act 1939, and others. However, in terms of marriage choices,
they are just a legislative work without implementation.5
The Supreme Court, in its landmark decision Safin Jahan V/S Ashokan KM & others6,
overturned the Kerala High Court's decision and allowed a Muslim convert girl to live with her
husband Safin Jahan, stating that: The father may believe that there has been an enormous
transgression of his right to protect his daughter's interests, but his viewpoint and position
cannot be allowed to curtail the fundamental rights of her daughter, wh Article 21 of the Indian
Constitution guarantees a person's right to marry the person of his or her choice.
The Indian government has proposed raising the legal marriage age for women from 18 to 21
years. Currently, the legal minimum age for women to marry is 18 years, while the legal
minimum age for men is 21 years. On December 21, a bill was introduced in the Lok Sabha to
codify such a legal change.7
Another argument against the proposal is that some girls from especially conservative,
regressive and patriarchal families escape their families’ clutches by choosing to marry a
person of their choice after turning 18 years old. As a result of the proposed legal amendment,
such girls would have to wait for three more years; this period could be misused by families
and the wider community to threaten and control such girls.
However, it was submitted to a parliamentary subcommittee for further examination when
opposition parties objected. According to the bill, the new minimum marital age for women
will take precedence over all personal laws, raising the legal age of marriage for all females
regardless of faith.
The Indian government raised the legal minimum marriage age for girls from 15 to 18 years
old and for boys from 18 to 21 years old in 1978. Another argument is that young female
pregnancies increase the risk of high blood pressure, anaemia, and a variety of other health
problems in the mother, as well as serious pregnancy complications that can result in the

5
Right To Marriage By Choice. (2021). Right to Marriage. https://www.legalserviceindia.com/legal/article-

5531-right-to-marriage-by-choice.html

6
(2018) 16 SCC 368, AIR 2018 SC 1933
7 ibid

11
mother's death. As a result, raising the age of marriage for girls may help reduce maternal
mortality.
In many traditional societies, women’s age at marriage acts simultaneously as a gateway to
new family roles and the likelihood of producing offspring. However, inadequate attention has
previously been given to the broader health and social implications of variability in women’s
marriage age for public health. Biomedical scientists have primarily been concerned with
whether the onset of reproduction occurs before the woman is adequately able to nurture her
offspring and maintain her own health. Social scientists have argued that early marriage
prevents women from attaining their rightful education, accessing employment and training
opportunities, developing social relationships with peers, and participating in civic life. The
aim of this review article is to provide comprehensive research evidence on why women’s
marriage age, independent of age at first childbirth, is a crucial issue for public health. It focuses
on data from four South Asian countries, Bangladesh, India, Nepal, and Pakistan, in which
marriage is near universal and where a large proportion of women still marry below the United
Nations prescribed minimum marriage age of 18 years.8

8
ibid

12
 CHAPTER 3
REASON FOR FERTILITY DECLINE IN INDIA AND JAPAN:

Is India's population declining?

In a milestone of sorts, India’s National Family Health Survey 2019-21 (NFHS-5) has recorded
a decline in the total fertility rate (the average children a woman has) from 2.2 in the previous
survey ( 2015-16) to 2.0 in the latest one. And here too, it was 1.6 in an urban population and
2.1 in a rural setting. Public health experts are taking a moment to let this sink in, as it indicates
the population is stabilising – some states are inching up, others largely trending downwards,
the direction is towards an equilibrium.
Does this mean that India will not overtake China to become the most populous nation
globally?
There are too many variables to make that prediction, including how China handles its
declining population. Across geographies, there is a declining trend, but experts believe that
India may still be on the path to becoming the most populous nation. A critical step, however,
has been achieved in stabilising growth. India has achieved replacement level fertility, defined
as the level at which the decline on a sustained basis would result in a generation replacing
itself.

Are all States uniform in this development?

The short answer is no. The latest NFHS is the fifth in the series and was done in two phases
because of pandemic-induced restrictions and lockdowns. It
provides information on population, health, and nutrition across India, down to the state and
union territories. But different regions reflect different stages of development.
The second phase of the NFHS (covering 14 States and UTs) saw a TFR range from 1.4 in
Chandigarh to 2.4 in Uttar Pradesh. All Phase-II States have achieved replacement level of
fertility (2.1) except Madhya Pradesh, Rajasthan, Jharkhand and Uttar Pradesh. According to
reports, five states with TFR above 2 were Bihar, Meghalaya, Uttar Pradesh, Jharkhand and
Manipur. Just shy of TFR 2 were Haryana, Assam, Gujarat Uttarakhand and Mizoram at 1.9.
Six states - Kerala, Tamil Nadu, Telangana, Arunachal Pradesh, Chhattisgarh, and Odisha were
at 1.8. Further at 1.7 were Maharashtra, Karnataka, Andhra Pradesh, Himachal Pradesh,
Nagaland, and Tripura. And TFR was the lowest in this survey in West Bengal, at 1.6.

13
It was argued by the counsel for an impotent husband in Usman v. Inderjeet9 that if the
appellant wife was made to live with the respondent husband, the latter might be able to
consummate the marriage, and so, the court should be slow in granting a decree of nullity and
It was held that granting a second chance would advance the superiority of male over female.
In the case Biswas v. Biswas,10 Lord Penzance held that as there was practical impossibility of
sexual intercourse, without which the ends of marriage, namely, the procreation of children
and the pleasures and enjoyments of math mony could not be attained, the husband was entitled
to a decree for nullity.11

What is the reason behind Japan ‘s decline in fertility?

From shortly after World War II to the late 1950s, Japan experienced a steep drop in fertility.
In a little more than one decade, the birth rate went down by more than one-half, from a total
fertility rate (TFR) of 4.5 children per woman in 1947 to 2.0 in 1957. Fertility at this
"replacement" level leads to a stable population age structure and size. But then in the mid-
1970s, childbearing in Japan started dropping further. Since 2000, Japan’s TFR has fluctuated
between 1.3 and 1.4 children per woman.

Birthrates this low have led to extreme population aging and even population decline. As of
2015, 27 percent of Japan's population was age 65 and above, and projections indicate that by
2060 roughly 40 percent of Japan's population will be elderly. Japan is also the first large
country in the world whose overall population is becoming smaller in prosperous and peaceful
times. And projections suggest that the Japanese population will decline steadily over the next
several decades—from 128 million in 2010 to around 87 million by 2060. Population aging
and population decline on this scale pose serious challenges for Japan's economy and the
wellbeing of the Japanese people.

During Japan's first period of fertility decline, most young men and women still married,
but they had fewer children within marriage. By contrast, the fertility decline that began in the

9
Usman v. Inderjeet, AIR 1977 P&H 97
10
67 Ind Cas 949
11
Datta, J. P. T. (2021, December 20). What the fertility rate decline means for India. The Hindu BusinessLine.

https://www.thehindubusinessline.com/blexplainer/what-the-fertility-rate-decline-means-for-

india/article37996061.ece

14
1970s has been accompanied by sharply decreasing rates of marriage. As of 2010, 11 percent
of women and 20 percent of men at age 50 had never been married, and the trend shows no
sign of reversing. Because childbearing outside of marriage is rare, this low marriage rate
means that many Japanese men and women will never have children.12

Yet Japanese support systems are designed with family as the primary safety net,
particularly for care and support of the elderly. Given this framework, the rapid expansion of
the number of single men and women—who will grow old without children or grandchildren—
has profound implications for the economic status and wellbeing of Japan's population in years
to come.

And this problem is not confined to Japan. Although Japan was the first country in Asia that
experienced such a steep and prolonged fertility decline, by now fertility has dropped to similar
levels—or even slightly lower—in other advanced economies of the region

Whereas in Japan’s birth rate may be falling because there are fewer good opportunities for
young people, and especially men, in the country’s economy. In a country where men are still
widely expected to be breadwinners and support families, a lack of good jobs may be creating
a class of men who don’t marry and have children because they and their potential partners
know they can’t afford to.
The mean age at marriage in Japan (as measured by the singulate mean age at marriage)
remained fairly stable until 1975, when it suddenly began to increase. Between 1975 and 1995,
singulate mean age at marriage increased from 24.5 to 27.7 years for women and from 27.6 to
30.7 years for men, making Japan one of the latest-marrying populations in the world. Over the
same period, the proportion who will never marry, calculated from age-specific first-marriage
probabilities pertaining to a particular calendar year, increased from 5 to 15 percent for women
and from 6 to 22 percent for men a far ay from the universal-marriage society of earlier years

While of great interest in their own right, these marriage trends have gained attention also
because they account for more than half of Japan's resumed fertility decline since 1973 This
fertility decline has been substantial. Between 1975 and 1999 the total fertility rate fell from

12
East-West Center, www.eastwestcenter.org. (2021, December 23). Low Fertility in Japan—No End in Sight.

https://www.eastwestcenter.org/publications/low-fertility-in-japan%E2%80%94no-end-in-sight

15
1.9 to 1.3 children per woman. That fertility is now well below replace ment level and still
falling has caused much public concern in Japan13.

The trend toward late marriage and less marriage has come about be cause of a confluence of
interrelated economic, social, and cultural changes including remarkable educational gains by
women, massive increases in the proportion of women who work for pay outside the home.
major changes in the structure and functioning of the marriage market extraordinary increases
in the prevalence of premarital sex, and far-reaching changes in values relating to marriage and
family life. In this article we describe these changes and assess their effects on age at marriage
and the proportion never marrying in Japan.

13
ibid

16
 CHAPTER 4

The creation of new technology for the advancement of reproduction should be made
distinct by law.

Louise Brown, the first child born by in vitro fertilization, was born in 1978, and IVF treatment
has since helped millions of people who are childless. There are around 5 million IVF babies
in the globe, according to estimates. IVF's scientific growth has brought with it legal and social
difficulties. The study and literature on IVF have grown to include the legal and ethical aspects
of the procedure, but it is still insufficient. Although IVF is permitted in India, no explicit
legislation exists. IVF treatment has garnered a lot of public attention in the last 20 years;
therefore, it needs to be thoroughly examined from a legal and ethical standpoint.

What exactly is IVF?

In-vitro fertilization is a sort of advanced fertility treatment in which fertilization takes place
outside of the body and is used to treat infertility in cases where other forms of assisted
reproductive technology, such as surrogacy, have failed. It is a laboratory procedure that
involves combining a woman's egg and a man's sperm. Before a woman may become pregnant,
she must undergo numerous IVF treatments.

IVF is indicated for who?

IVF is appropriate for persons who are experiencing infertility. IVF is advised for women who
have damaged, blocked, or absent fallopian tubes. It is a wonderful alternative for them because
it entirely skips the fallopian tube. IVF is also indicated for women with illnesses such as
Polycystic ovary syndrome or endometriosis. IVF is indicated even when a guy has
reproductive issues such as low sperm count, no sperm count, or low sperm count.

Issues of Law and Ethics

Many ethical value systems dispute IVF treatment, which has sparked a debate. We all know
how beneficial IVF is, yet there are also serious ethical and legal concerns with it, such as:

Defining the ethical wrongs committed against pre-implantation embryos

With the increased popularity of IVF, one aspect that is rarely discussed is what happens to all
those excess embryos. Because numerous embryos are utilized to increase the chances of

17
pregnancy, yet only one embryo is used at a time, any embryos that are not needed are stored
for research purposes. These frozen embryos are also used for research or destroyed if they are
not implanted to the uterus. If an embryo is taken into consideration as an individual then it is
unethical to destroy it. It is similar to intentionally killing an individual14.

An embryo is a human person, and all humans should be treated as individuals. The protection
of an individual's life should begin at the moment of conception. Some believe, however, that
embryos are too basic to be granted rights. Thus, using embryos for research and eradication is
ethical because it serves the interests of humanity. Unfortunately, the debate over embryo rights
does not address the question of whether or not the destruction of embryos is ethical.15

16
Lamaritata v. Lucas (823 So.2d 316 (2002)) The donor and the recipient entered
into a contract whereby the donor provided sperm to the recipient with the
expectation that she would become pregnant through artificial insemination. The
agreement provided that if childbirth resulted, the donor would have no parental
rights and obligations associated with the child. The donor, in an attempt gain
parental rights of the twin boys who were born t o Ms. Lamaritata argued that he
was not a sperm donor but instead the biological father, and thus should be
afforded parental rights. Issue is does a sperm donor have any legal parental
rights. Court held that In an attempt to avoid the enforcement of the contract, Mr.
Lucas argued that he was not a sperm donor. Instead, he argued that he was part
of a commissioning couple with the mother. A commissioning couple is defined as
the intended mother and father of a child who will be conceived by means of
assisted reproductive technology using the eggs or sperm of at least one of the
intended parents. There were no facts to establish this, and the intent of the parties
was established by contract. A person who provides sperm for a woman to conceive
a child by artificial insemination is not a parent. Thus, the sperm donor here has
no legal parental rights. 17

14
legal Service India. (2020). Artificial Insemination - In Vitro Fertilization and challenges caused to Legal

System. https://www.legalserviceindia.com/articles/art_ins.htm

15
ibid
16
(823 So.2d 316 (2002)
17
ibid

18
A child born through ART shall be presumed to be the legitimate child of the couple, born
within wedlock and with consent of both the spouses and with all the attendant rights of
parentage, support and inheritance. Sperm/oocyte donors shall have no parental right or duties
in relation to the child and their anonymity shall be protected. A child can be given status of
legitimacy also by adoption. In Strand v. Strand.18 The husband had been given visitation rights
in a divorce petition, but the wife later tried to have these rights rescinded in the ground that
her child was illegitimate. She, however, admitted that she had undergone AID with her
husband's consent. The court held that the husband should retain his right and because he had
consented for AID the child was not illegitimate. According to the decision of the court the
child had been potentially adopted or semi-adopted? by the husband, thus, he was entitled to
the same rights as those acquired by a foster parents, who has formally adopted a child.

In Doombos v. Doombos19 (139, N.E.,2d 844 (1956))on a wife's petition for divorce and
custody of the child born to her consequent to AID, consented to by the husband, one of the
questions before the court was: whether such a child is legitimate and belongs to the mother
only? The Court held that a child so conceived was not a child born in wedlock and therefore
illegitimate. As such it was the child of the mother alone and the husband had no rights or
interest in the child, not even that of visitation.

The number of people who can claim parental rights as a result of in vitro fertilization includes
the sperm donor, the egg donor, the surrogate mother, and the parents who raise the child.
Furthermore, if the couple divorces while the embryos are in storage, legal issues about the
custody of the embryo may develop. The extra embryos are either stored, discarded, donated,
or used in research. Because some religions believe life begins at conception, this might equal
to abortion, which is illegal and unethical. Expert indentation is also prohibited because science
cannot experiment on someone who has fundamental human rights without first obtaining
permission.

In another case Gursky v Gursky20 the Supreme Court of New York ruled that a child on the
basis of an implied contract on his part or the doctrine of equitable-estoppel.

Anonymous v. Anonymous21 a husband had consented to his wife's therapeutic impregnation.

18
Strand v. Strand, 57 A.D.2d 1033 (N.Y. App. Div. 1977)
19
139, N.E.,2d 844 (1956)
20
(1963)242 N.Y.S. 2d 406
21
(1964)246N.Y.S. 2d. 835

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On the wife's claim for alimony the husband pleaded that the child was illegitimate. Rejecting
his plea, the court awarded the alimony on the ground that consents in writing carried with it
an implied promiseto furnish support for the resulting progeny.

In People v. Sorenson22a man from California was, convicted of criminal non-support,

sentenced to jail for one year on probation with an order to make support payments for a child
born to his wife consequent to AID after his written consent during the wedlock. On appeal
however, the court held that for the purposes if the criminal statute the husband was not the
child's father.
Donation entails the separation of the biological and social aspects of parents, which is an
important part of the family construct, and is equal to adoption before birth, requiring changes
to most countries' adoption laws.23 It can put her life in peril if she is carrying more developed
embryos. To prevent jeopardizing her health and life, the sole option is to terminate one or
more of the developing embryos selectively. This not only entails surrendering one or more
lives, but it also requires the doctor to decide which ones to terminate and how to do so.

CONCLUSION:

To conclude, it is widely acknowledged that age of marriage has a significant influence on

fertility, particularly in the countries where childbearing occurs within marriage. However, the
complexities of marriage/fertility relationship are poorly understood, especially during fertility
transitions.
In India dip in fertility is attributed to a combination of factors, including better contraception
initiatives and government health and family welfare schemes. But a key factor is the education
of a person, specially a girl child and efforts to improve overall health and nutrition.
The fact that marriage provides for the biological continuity of the society through procreations
and also for its cultural continuity by providing a suitable atmosphere for socialisation. The
age at which a female marries marks the beginning of her reproductive life and hence
characterises her fertility behaviour. Thus the minimum age at which female can enter marriage
acquires significance in determining the fertility level of country. This age is fixed keeping in
view the prevalent cultural norms, and social values, her biological maturity for sexual life, her
economic independence and status in the society. Thus, this projects centers on the issue that
whether late marriage and fertility is an individual choice and if it a positive development.

22
(1967) 62 Cal. Rep. 462
23
ibid

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 BIBLIOGRAPHY:
• family law 1 (Pooonam sexena ed.). (2020). Pooonam sexena.
• Family Law 1. (2022). Paras Diwan.
• Marphatia, A. A. (2017). Women’s Marriage Age Matters for Public Health: A Review
of the Broader Health and Social Implications in South Asia. Frontiers.
https://www.frontiersin.org/articles/10.3389/fpubh.2017.00269/full
• Right To Marriage By Choice. (2021). Right to Marriage.
https://www.legalserviceindia.com/legal/article-5531-right-to-marriage-by-
choice.html
• Datta, J. P. T. (2021, December 20). What the fertility rate decline means for India. The
Hindu BusinessLine. https://www.thehindubusinessline.com/blexplainer/what-the-
fertility-rate-decline-means-for-india/article37996061.ece
• Frozen Embryos- What Are They and How Should the Law Treat Them.pdf. (2020).

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