A complaint received by the Maharashtra State Commission for Protection of Child Rights early this year has raised concerns that fertility clinics might be misusing technology meant for screening genetic disorders to guarantee the birth of boys.

It is illegal in India to use any technology to select the gender of a foetus. But activists suspect that medical professionals have been using Preimplantation Genetic Diagnosis, or PGD as it is commonly known, to selectively implant male embryos. The PGD technique allows doctors to test an embryo for genetic abnormalities before transferring it to the uterus. It was introduced in India roughly two decades ago. A woman’s complaint to the child rights commission has only strengthened this suspicion.

Shubhangi Bhostekar, 35, said that a surrogate hired by her businessman husband, Prakash Bhostekar, 41, without her knowledge had in September 2016 delivered a male child. Shubhangi Bhostekar claimed the birth of the boy was made possible by sex selection at preconception. The couple have two daughters aged 5 and 14.

Mumbai’s Jaslok Hospital, where the surrogacy procedure was performed, has refuted the allegation of sex selection. A hospital spokesperson said the embryo was implanted into the surrogate’s uterus on the second day of its formation. “At this stage, embryo biopsy for PGD is not possible and hence there has been no misuse of a technology,” the spokesperson said.

The Maharahstra child rights body has asked the Mumbai police to investigate Shubhangi Bhostekar’s allegation. The police have referred the matter to a medical board, consisting of government doctors, for expert opinion, Senior Police Inspector at Mulund station Shripad Kale said.

The Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994 requires that every “Genetic Counseling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall maintain a register showing, in serial order, the names and addresses of the men or women given genetic counseling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the names of their spouses or fathers and the date on which they first reported for such counseling, procedure or test”.

The Indian Council of Medical Research also maintains a national registry of fertility clinics.

To help couples who are unable to conceive naturally bear children, doctors take reproductive germ cells called gametes from them or donors to create an embryo. The embryo may be screened for genetic abnormalities using the PGD technique before it is implanted into the uterus of the mother or the surrogate. The technique can also be used to determine the gender of the embryo. In fact, a study conducted in Iran, where PGD is widely used for gender selection, found that it was “100% successful in achieving the desired sex”.

This is what worries activists in India. Specifically, such procedures are difficult to monitor and, thereby, regulate, making them prone to misuse. “These clinics are offering such sophisticated treatments but are not being monitored effectively,” said Varsha Deshpande, founder of Lek Ladki Abhiyan, a non-profit that campaigns against sex selection. “It is not a mere coincidence that celebrities and rich people opting for surrogacy are only having sons.”

In 2013, Deshpande filed a case against the actor Shah Rukh Khan and Jaslok Hospital for allegedly predetermining the sex of his third child, who was born through surrogacy. Her petition was eventually dismissed by the Bombay High Court.

Suspicious case

On January 12, 2016, Shubhangi Bhostekar and her daughters were allegedly evicted from their home. In her complaint to the Mulund police, she said her husband had forced her to undergo multiple abortions following the birth of her second daughter because he wanted a male child. “He even took me to Jaslok Hospital in 2014 as he wanted me to undergo infertility treatment,” she told Scroll.in. “He told me treatment at the hospital will ensure the birth of a boy. I was tired of the harassment and decided not to undergo it.”

Jaslok Hospital confirmed the couple had visited infertility specialist Dr Firuza Parikh on August 6, 2014, but had not registered as patients or paid a fee. They wanted to plan for another child but the patient came with a history of having two daughters, two miscarriages and the husband had high blood sugar level, the hospital said. They were told to come back when his sugar levels were under control. Prakash Bhostekar returned after about 17 months, but as a single man who wanted a child through surrogacy. At that time, Parikh did not recall his previous visit, the hospital added.

On March 21, 2017, Shubhangi Bhostekar complained to the child rights commission, alleging that her husband, in pursuit of having a boy, had hired a surrogate through Jaslok and entered into an agreement with her on January 15, 2016, three days after throwing Shubhangi Bhostekar and their daughters out of his home.

Jaslok, however, told the commission they were not aware Prakash Bhostekar was married with two daughters since he had furnished an affidavit saying he was single. The Indian Council of Medical Research’s guidelines require a married person to take spouse’s consent before commissioning surrogacy.

The surrogate delivered a baby boy on September 28, 2016. A month later, Shubhangi Bhostekar approached the police after learning her husband had brought an infant home.

Her lawyer, Siddh Vidya, claimed the police investigated her complaint only after she filed a Right to Information application about the status of the case. “There is enough circumstantial evidence indicating that Prakash opted for surrogacy to have a boy,” said Vidya.

The child rights commission agreed. After receiving Shubhangi Bhostekar’s complaint, it directed the Maharashtra government to “take appropriate action against Prakash Bhostekar and [his mother] Laxmi Bhostekar for sex selection, forceful abortion, for giving false affidavits to the effect that the [marital] status of Prakash Bhostekar is single and for obtaining a male child through surrogacy.”

Pravin Ghuge, chairperson of the commission, said Prakash Bhostekar has violated the rights of his daughters and newborn son. “We are not a medical body but from the submissions made to us it appears the surrogacy was opted for the sole purpose of having a male child,” he said.

Need for regulation

In 1998, Dr Anniruddha Malpani, who runs an infertility clinic in South Mumbai, argued in an article in the Indian Journal of Medical Ethics for allowing the PGD technology to be used for sex selection.

Twenty years later, Malpani said that the bannon the use of technology for sex selection was to be blamed on cases like the Bhostekars. “The ban has driven the operations underground,” he said. Malpani said that instead of a blanket ban, there could have been a regulatory mechanism to allow couples to select the gender of the child. “What if the couple just wants to balance the sex-ratio in the family?” he asked.

Infertility specialist Dr Kamini Rao, who practises in Bangalore, said discussions around using the PGD technology for sex selection were unwarranted. “The law does not permit it and we have to follow it,” she said.

Still, many couples do ask her to conduct sex selection procedures – “especially couples who are opting for infertility for a second child inquire about sex selection,” she said. “But it is not necessarily only for having a boy. Many couples want a girl.”

Amar Jesani, a researcher specialising in bioethics and public health, said artificial reproductive technologies have made it possible for doctors and couples to select several aspects of the foetus. “It is a well known fact that selection takes place and gender is only one part of it,” he said.

Both Jesani and Rao said legislative regulation of assisted reproductive technologies was required. “The Bill to regulate assisted reproductive technology was never introduced in Parliament,” said Jesani. “And without regulating the ART industry, having a bill for regulating surrogacy is not enough.”

Gita Aravamudan, author of Baby Makers: The Story of Indian Surrogacy, said it was not surprising that doctors were selecting the gender of embryos. “During my research, I learnt of cases where couples chose the gender of the child they bore using infertility treatment,” she said. “The entire industry needs to be regulated.”