Assisted Reproductive Technology (Regulation) Act, 2021: Problem disguised as a solution?

Introduction: 

With the advent of development in technology, new milestones are being set and there is almost nothing left that machines cannot do. So much so that since the 1980s, babies are being born with the help of Assisted Reproductive Technology. The industry in the coming years bloomed aggressively as this was a major relief for those couples who couldn’t bear a child naturally. Section 2 (1) (a) of the Assisted Reproductive Technology (Regulation) Act, 2021 defines “assisted reproductive technology”. This term, with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.[1]

However, as they say, every coin has two sides, and the growth in the reproductive industry came with a flip side as well. This industry was unregulated and lacked standardization. It, therefore, became important to formulate cogent rules, guidelines, and regulations to regulate the industry as many ethical, social and legal issues started to surface. Starting from 2005, the Indian Council of Medical Research (hereinafter referred to as the “ICMR”) issued guidelines from time to time to synchronize this industry at a national level[2]. Finally, it was the 228^th Report of the Law Commission of India that recommended the enactment of a full-fledged Act to legalize and control Assisted Reproductive Technology in India[3]. Pursuant to this, a Bill was introduced and passed in the Parliament on 8^th December 2021 and after having received the assent of the President on 18^th December 2021, the Assisted Reproductive Technology (Regulation) Act, 2021 (hereinafter referred to as the “ART Act”) came into force[4]. Along with this Act, the Surrogacy (Regulation) Act, 2021 was also enacted to streamline surrogacy in India[5]. 

The driving force behind the ART Act is to regulate the reproductive industry and lay down an eligibility criterion with respect to who can access these procedures like in-vitro fertilization and surrogacy. To understand the challenges surrounding the Act, it is first necessary to take a glance at the features of the Act. 

What is Assisted Reproductive Technology?

Features of the Act 

1. Accessibility
   The Act has categorically allowed only married infertile couples and women belonging to certain specified categories to access ARTs and surrogacy. 
2. Eligibility Criteria 
   The Act has capped the age of both women and men who can undergo the procedure. The thresholds have been defined at 21-50 for a woman and 21-55 for a man. 
3. Compulsory Registration 
   The Act mandates compulsory registration for every ART clinic and bank under the National Registry of Banks and Clinics of India. The Act prohibits the facilitation of ART procedures by any banks or clinics unless they are registered. 
4. Duties and Obligations 
   The Act has explicitly laid down numerous duties and obligations on ART banks and clinics. The ART banks and clinics must ensure that the commissioning couple, woman, and donor are eligible to access the ART services. The clinics are dutybound to obtain the gametes from the banks and additionally ensure that the donor is medically tested for diseases. The Banks and clinics must duly inform the couple or woman about the risks, procedures, and consequences of ART. A grievance redressal mechanism must be set by the banks and clinics. 
5. Penalty Provisions 
   Further to strictly enforce the provisions of the Act, several penalty provisions are formulated which include both fines and imprisonment. 

Rights of a child born through ART:

A child born through the ART procedure holds the same rights as a natural heir or child of a couple. He/she would be deemed to be a biological child of the couple and would be entitled to all the rights and privileges available to a natural child of the commissioning couple[6]. A donor will not have any rights over the child.[7]

Challenges/Shortcomings 

Ever since the Act has come into force, there have been rising debates about the legal and ethical issues circumventing the Act. Petitions have been filed in various High Courts and even in the Supreme Court of India challenging the vires and validity of certain provisions of the Act. 

The Petition filed in the Hon’ble Supreme Court of India (Arun Muthuvel vs. Union of India, Writ Petition (Civil) No. 756 of 2022) challenges the provisions pertaining to age thresholds, costs related to surrogacy, and clauses pertaining to a blanket ban on commercial surrogacy. The petition has not yet been decided but the Court has asked the Centre to file a response giving detailed reasons and explanation for the same. 

Another petition has been filed in the High Court of Delhi (Karan Balraj Mehta and Anr. vs. Union of India, Case No. Writ Petition (Civil) No. 8448 of 2022) contesting the Act as discriminatory and against the spirit of the Constitution of India. This petition is also yet to be decided by the Court. 

Undoubtedly, the step taken by the legislature to formulate laws with respect to reproductive rights was much needed, however, there are still some grounds on which the Act has fallen short, and quite evidently, there is still a need to amend and/or clarify certain provisions either legislatively or jurisprudentially. 

Accessibility to ART Procedures

The case of Navtej Singh Johar & Ors. v. Union of India[8] was a milestone for India as, after a long-fought battle, the rights of homosexuals were finally given legal recognition. It paved the way for a much-awaited revolution in the mindset of the country. Similarly, another welcoming judgment of Tulsa & Ors v. Durghatiya & Ors[9]. resulted in accepting the newer forms of relationships like live-in relationships. Such cases are nothing less than a testament to the developing and dynamic nature of the Indian Judiciary. However, by limiting the accessibility to ART procedures only to married infertile couples and in certain cases single women, we as a Country after coming 2 steps forward have gone a step backward. The exclusion of homosexuals, live-in couples, and males from the Act goes directly against the fundamental principle of the Constitution i.e., the Right to Equality. 

The Cap on Age Limit 

Before this Act came into force, there was no such legal age limit for ART procedures. The rationale behind setting a threshold was to reduce the number of unsuccessful ART procedures as with increasing age the chances of successful ART decrease. However, this debate of whether age should be capped or not is much more than just denying the older couple a chance to access ART. This issue involves complex questions about the fundamental right to reproduce and make a choice and the reasonableness of the restriction put by the State on this fundamental right. 

In a landmark case of Justice K S Puttaswamy v. Union of India[10], the nine-judge bench of the Hon’ble SC unanimously held the right to privacy as a fundamental right and broadened the horizons of privacy to cover personal autonomy with respect to body, mind, and making personal choices. It was explicitly stated by the Court that the decision of the women regarding reproductive rights is a constitutional right and a fundamental part of personal liberty as enshrined under Article 21. The question at the heart of this provision is whether the decision of opting for an ART procedure should be a choice of the individual/couple or whether it is something that the law should decide for them. 

Surrogacy 

Being one of the most rapidly growing industries, issues about surrogacy never seem to end. On one hand, there are debates against surrogacy as certain feminists have voiced that surrogacy exploits women belonging to a certain type of race and class. Then, there is evidence of pending cases in the Courts related to serious issues like non-payment, abandonment, and statelessness of children born out of surrogacy, etc.

On the other hand, there have been new issues that have come to light due to the passing of the legislation which imposes a complete ban on commercial surrogacy and has only favored altruistic surrogacy. The concerns are valid and pertain to the high standards set by the Act such as childlessness, 5 years of non-conception, and a surrogate being a close relative as prerequisites. This set of criteria set by the Act has completely ignored the perspective of those who wish to become surrogates and has instead left an impression that surrogates should undergo this reproductive labor without any monetary compensation. 

The way ahead 

Being unregulated for a long time now, the Act is a welcome step, however, the impact and overall consequence of the Act are yet to be seen. Considering dynamic societal changes, the Act must remain in consonance. The Act has the potential to further strengthen the recognition and acceptance of homosexuals by giving them a chance to have a family just like heterosexuals by explicitly including them and allowing them to access ART procedures. The Act is also placed at the center of reproductive autonomy as the interest of so many individuals are interlinked and it is necessary to maintain a balance. The thresholds and the eligibility set by the Act are setbacks majorly because it is in essence a restriction on the personal autonomy and reproductive rights of individuals. After landmark judgments upholding and favoring these rights, the Act has steered back a little and for this deviation, the Centre is yet to give its response. 

As of now, the only plausible way ahead is that the Judiciary ensures that the Act is in line with the previous rulings of the Court such as the privacy judgment, upholding rights related to personal autonomy, and acceptance of unconventional relationships. Moving ahead, the Act is the right step, however, making changes and interpreting provisions considering the changing circumstances and environment is also inevitably required.  

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