A letter from the Attorney General's Office has been made public, stating that it will not prosecute a case involving egg donation by a minor.

The letter states, ‘There is no existing law prohibiting minors from donating sperm or eggs. The Children’s Act does not classify such acts as violence or sexual abuse against children.’

The silence of the state may be a legal weakness, but the voice of justice and humanity is always clear— the body of a child is not a commodity, but a symbol of dignity. A closer examination of this argument shows that it ignores Nepal’s constitutional rights, the principle of child rights, and the spirit of the laws on the control of human trafficking. The facts that have come to light have made it clear that the girls who donated eggs were girls under the age of 18. Thus, treating the physical and reproductive exploitation of girls as a ‘lawless area’ by citing the mere fact that ‘a separate law has not been enacted on a specific subject’ is against the basic principles of legal interpretation.

Although the prevailing law of Nepal does not clearly prohibit the issue of ‘not donating sperm or eggs’, when analyzing the form of intervention and use of the girl’s body in the egg donation process, it seems that the existing law of Nepal definitely covers it. Therefore, the interpretation is more ‘mechanical’. That interpretation seems to be against the spirit of the Constitution of Nepal, Child Rights, Human Trafficking Act and international treaties. The law may be silent, but justice can never be silent.

The perspective of consent

Why were these girls chosen for the egg donation process? What socio-economic background did they come from? How independent were they in the decision-making process? These questions have not been thoroughly researched, which is a matter of serious concern. According to Section 34 of the Civil Code, 2074, a person under the age of 18 is considered semi-capable. Therefore, the mandatory presence of a guardian or guardian is required when doing any kind of legal document with such a person. Similarly, the prevailing law of Nepal has clearly provided that a woman under the age of 18 cannot give valid consent for physical contact. Therefore, physical relations with a girl under the age of 18 are included in the definition of rape. So even if the girls say ‘I am ready to donate my eggs’, that is not considered legally valid consent. In many cases, egg donation can be a form of exploitation, even for women of legal age. On the surface, some may think, ‘Women are free, they can choose whether or not to donate their eggs, it is their personal choice.’

However, if a woman is forced to donate her eggs due to financial crisis, debt, unemployment or family or marital pressure, then to what extent can that decision be called a free and voluntary choice? When consenting to egg donation, is the woman given clear, factual and understandable information about the hormones administered through injections, frequent tests, ovarian ‘hyperstimulation’, long-term reproductive risks, and possible health effects of surgery? Are the agreements and medical documents explained in a language that she fully understands, in a simple and easily understandable manner? If the ‘choice’ to donate eggs is a result of financial pressure and lack of alternatives, then even if the consent given on paper appears legally valid, it cannot be considered a completely free, informed and exploitation-free decision.

Child Rights Perspective

Section 66 of the Children’s Act clearly prohibits physical, mental and sexual abuse of children. The act of egg retrieval itself is a direct medical intervention on the reproductive organs of the girl child. In the present dispute, during the egg retrieval process, the girl child’s reproductive organs have been tampered with without the presence of her guardian or parent. Similarly, hormones have been injected into their bodies through various types of injections and physical examinations have been repeatedly conducted without the presence of their parents. It is clear that their bodies have been turned into ‘living test instruments’ for drug testing. Such acts can be interpreted within the scope of sexual abuse and physical violence against children. The consent of a minor is not legally valid, so in such situations, the concept of ‘will’, ‘choice’ or ‘free consent’ is meaningless in both practical and legal terms. The Convention on the Rights of the Child, ratified by Nepal, has given the state the responsibility to protect children from all forms of physical, mental, sexual and economic exploitation. Similarly, the Constitution of Nepal has also made a provision to make the best interests of the child the fundamental basis of all policy and executive decisions of the state.

Article 39 (6) of the Constitution of Nepal clearly states, ‘Every child has the right to protection from exploitation, abuse, neglect and violence.’ Minors who are involved in egg or sperm donation are at physical, mental and reproductive risk. Such an act violates their right to bodily autonomy and a dignified life.’

Therefore, the argument that ‘there is no prohibition in the law’ is not consistent with the constitutional spirit and the principle of the best interests of the child. Since the Office of the Attorney General is a part of the state, the office has a constitutional, legal and international obligation to prioritize the best interests of the child in all its decisions. However, in the current decision, the interests of the guilty institution have been given priority over the interests and safety of the child, due to which the state has failed to fulfill its constitutional and international obligations. Therefore, this decision has violated the spirit of the Convention on the Rights of the Child, the spirit of the Constitution of Nepal, and the state’s obligations towards the interests and safety of children.

Perspectives on human trafficking and smuggling

Around the world, parents who want eggs are mostly from wealthy or prestigious social classes, while the donors are poor, students, immigrants, and working class women. In this context, concepts such as ‘reproductive human trafficking’ have developed. This means that human trafficking for sexual purposes has not only spread to organ-centric exploitation for reproductive purposes as in the past. Citizens of rich countries, who previously chose poor countries for ‘surrogacy’, now send women from poor countries as egg donors to rich countries or cities on unequal terms. Not only that, in some markets, the price of eggs is determined differently based on the physical appearance, education, caste, height, etc. of the woman. There are examples of fair-skinned, socially ‘beautiful’ or highly educated donors being given more value and promoted more. This seems to have revived practices such as ‘eugenic selection’ and transformed the qualities, body and potential appearance of the child into a list of rates, i.e. a price list.

So feminists say – in this way women become mere sources of ‘genetic material’ and children become marketable commodities like ‘designer babies’, which seriously undermines the standards of human dignity, gender justice and child rights.

In this specific case too, it seems that underage girls were used in the egg donation process. But, why were these girls chosen? What socio-economic background did they come from? How independent were they in the decision-making process? No in-depth research seems to have been done on these important questions, which in itself is a matter of serious concern.

Section 4 (c) of the Human Trafficking and Smuggling (Control) Act defines ‘the act of removing human organs without lawful permission’ as the crime of human trafficking. Eggs are also biological tissues of the human body. If an organization or individual extracts the eggs or sperm of a minor, especially for commercial purposes, it is both a crime of extracting human organs and exploitation. In addition, the Act defines the word ‘exploitation’ in a broad sense. An important example of this is the action taken by the Attorney General’s Office in an incident that went public a few years ago. In that case, the victim only made the incident public about eight years later. However, the Attorney General’s Office has finally filed a case in their favor, accepting the incident as sexual exploitation, albeit belatedly. The provision considers exploitation to include the use of a person for financial, sexual or any other form of benefit. Therefore, using the eggs or sperm of a minor to help others produce children or for a hospital to gain financial benefit from it is also a form of exploitation.

Ethical and Medical Perspective

Considering serious legal and ethical aspects such as the validity of consent, the possibility of exploitation and health risks, many countries with separate laws on egg donation have set the minimum age for minors at 21 years, taking into account the mental maturity and capacity to consent, even though the age of consent is 18. The process of egg retrieval can be physically harmful to minors. There are serious risks such as hormone injections, surgery, infection and the risk of future infertility. It can have long-term effects on the mental health of the minor.

Therefore, it is not only legally, but also morally and medically wrong.

In the present case, egg donation or ‘assistance’ is only in name, but in reality it is a purely commercial transaction. The ‘minor’s eggs’, which are considered extremely valuable, have been retrieved using the body and time of the minor. Clinics and agencies have made huge profits from this, but surrogates have received much less financial return. However, the use of hormones, surgery, frequent testing and the long-term health risks arising from it have to be borne by the surrogate's body. In such cases, the financial benefits tend to go mainly to the hospitals, clinics and intermediary agencies, and only the risks are imposed on the surrogate's body. That is why feminists say that this is not a 'gift', but internal labor within the framework of deep structural inequality, which some call 'reproductive exploitation'.

In 2072 BS, the Supreme Court of Nepal clarified an important criterion in the course of deciding a writ petition filed by advocate Pushparaj Pandey. The court said, 'For any act to be considered legitimate, it must be socially acceptable, in accordance with moral values ​​and norms, and approved by law.' Not only that, but whether such an act is just or not is equally important.’

With this reasoning, the Supreme Court has ruled that ‘a woman’s womb cannot be used commercially’ and has directed the government to completely ban commercial ‘surrogacy’ in Nepal. Incidentally, one of the two honorable judges who participated in the bench that made the historic decision was Honorable Sushila Karki, who later became the first Chief Justice of Nepal and also the first female Prime Minister.

This judgment makes it clear that no commercial model can make a woman’s body a marketable commodity, harm her dignity, or go against the basic principles of justice. The reasoning that the Supreme Court has prohibited the commercial use of wombs applies equally to the commercial exploitation of eggs. The practice of using women's reproductive organs, wombs or ovaries as a 'means of production' or 'source of income' and making profit on unequal terms clashes with the standards of social acceptance, moral values, justice and legal recognition set by the court.

Similarly, in a country committed to socialism, selling eggs bought for 10 thousand for 2 million is a serious violation of economic exploitation and human dignity, a gross mockery of the Constitution. This is not just economic inequality, but a direct example of objectivism that exploits women's bodies and reproductive capacity. They have been taken advantage of because they are financially helpless. Such behavior is the result of a patriarchal structure and a profit-oriented system. Such actions have made the bodies of poor or helpless women like commodities to be controlled, evaluated and sold in the market, which is not allowed by legal and moral grounds.

The Gen-G rebellion was against corruption, distortion, inconsistency and irregularity. The changes after this rebellion even changed the Attorney General. तर, यसरी गरिब, असहाय बालिकाको शरीरलाई नियन्त्रित, मूल्यांकन र बजारमा बेचिने वस्तु बनाएर अपराध गर्नु अनि त्यसमा कारबाहीसम्म नहुनु अपराधको निरन्तरता मात्रै होइन, आन्दोलनको पनि अवमूल्यन पनि हो ।