The Assisted Reproduction Technology Regulation Bill was introduced in the Lok Sabha in September this year. It has been a natural follow-up to the Surrogacy Bill which was passed by Cabinet with several modifications in February this same year given the innate linkage between assisted reproduction and surrogacy. Importantly, it is also linked with the Medical Termination Pregnancy Amendment Bill 2020 seeking to ensure safe abortion and secure reproductive rights for women.
While the ART Bill in principle is a welcome measure, the substance of it raises certain questions.
Appears to be discriminatory in nature
First, it appears to be intrinsically discriminatory. By excluding single men, cohabiting heterosexual couples and LGBTQI individuals and couples from availing of ARTs, it is not only violative of right to equality under Article 14, it also overrides the Chandrachud judgment on same sex couples and the same-judge led judgment on privacy. In Puttaswamy case, the court had interpreted privacy ‘including at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” Furthermore, it allows for differential treatment between Indian citizens who would possibly want a child in a loving relationship and foreigners in a similar condition wishing to access the ART treatment.
Limited protection of donor
Second, there is limited protection of egg donor. There is not only absence of counselling for the donor, there is no right to withdraw her written consent before or during the procedure for the egg donor unlike what is allowed for the commissioning parties or couples.
Unpaid labour, unclear insurance provision
Third, that there is no provision for compensation amounts to unpaid labour prohibited under Article 23 of the Constitution. In cases of any complications and death, the mandating of insurance purchase by commissioning parties in donors’ name do not specify any amount or duration thereby leaving the latter vulnerable.
Patriarchy remains ‘in-charge’
Fourth, while the extension of surrogacy from ‘close relatives’ to widows and divorcees as modified in the surrogacy bill is a welcome improvement, restricting it to only married women with a child is strongly resonant of deep-rooted patriarchy.
Altruistic gamete donation needs further clarification
While altruistic surrogacy has been allowed and commercial surrogacy has been banned, there is no complete answer on the ways and means to address the shortage of gametes. Also, there is some confusion around foreign and domestic parents desiring for receiving gametes donation.
Lingering ambiguities on embryo research
While the bill rightly requires pre-implantation testing, it has allowed for the donation of the embryo for research in case there is “heritable, life-threatening or genetic diseases. “ However, since these are not further specified or defined, it risks giving a free hand to eugenics raising questions on bioethics.
Economic viability of ART banks a question
As gamete donation is not compensated for, there is no clarity on the sustenance of the ART banks.
Out of sync with surrogacy bill/Mishmash of regulatory bodies
Although both ART and surrogacy bills carry intersecting dimensions, there is a lack of alignment between the two. Since both ART and Surrogacy bills create multiple bodies for regulation, they are prone to redundancies and duplications and even confusion. Also, not only does the same action by ART clinics and surrogacy clinics invites different regulatory provisions, there are even different penalties for similar acts of offending bèhaviour in both bills creating an anomalous legal situation.
In sum, there is much room for improvements and clarification in the provisions of the ART Bill as given so far. Technology is a double-edged sword and it is important to regulate its use. Although the Surrogacy Bill has been ‘firmed up,’ the Medical Termination Pregnancy Amendment Bill 2020 needs ironing out of issues through the parliamentary process. Only full-scope safeguards under the latter can ensure complete and absolute rights of women in terms of how they exercise their right to safe reproductive health. In a country with 27 million infertile Indian couples and fast mushrooming fertility clinics and banks, it is imperative that the legal and regulatory provisions and processes are fine-tuned and clarified ‘beyond all reasonable doubt’. Also, there is an urgent need to train legal professionals on the medico-technological complexities of the subject as is the need to train doctors and health specialists on the legal/regulatory implications surrounding this subject.
