GS-2: Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation, Issues Relating to Development and Management of Social Sector/Services relating to Health, Education, Human Resources.

Key phrases: The Assisted Reproductive Technology (Regulation) Bill, 2020, The Surrogacy (Regulation) Bill, 2020.

Why in news:

• Lok Sabha recently passed Bill to regulate assisted reproductive technology
• The Bill seeks to regulate and supervise assisted reproductive technology clinics and banks, prevent misuse of the technology, and promote ethical practice of the services

Analysis:

The Assisted Reproductive Technology (Regulation) Bill, 2020. The Bill seeks to provide for the regulation of Assisted Reproductive Technology services in the country.

What is Assisted Reproductive Technology (ART): The Bill defines ART to include all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.

Examples of ART services :gamete (sperm or oocyte) donation, in-vitro-fertilisation (fertilising an egg in the lab), and gestational surrogacy (the child is not biologically related to surrogate mother).

ART services will be provided through:

1. ART clinics, which offer ART related treatments and procedures, and
2. ART banks, which store and supply gametes.

Regulation of ART clinics and banks:

• The Bill provides that every ART clinic and bank must be registered under the National Registry of Banks and Clinics of India.
• The National Registry will be established under the Bill and will act as a central database with details of all ART clinics and banks in the country.
• State governments will appoint registration authorities for facilitating the registration process. Clinics and banks will be registered only if they adhere to certain standards (specialised manpower, physical infrastructure, and diagnostic facilities).
• The registration will be valid for five years and can be renewed for a further five years.
• Registration may be cancelled or suspended if the entity contravenes the provisions of the Bill.

Conditions for gamete donation and supply:

• Screening of gamete donors, collection and storage of semen, and provision of oocyte donors can only be done by a registered ART bank.
• A bank can obtain semen from males between 21 and 55 years of age, and oocytes from females between 23 and 35 years of age.
• An oocyte donor should be an ever-married woman having at least one alive child of her own (minimum three years of age).
• The woman can donate oocytes only once in her life and not more than seven oocytes can be retrieved from her.
• A bank cannot supply gametes of a single donor to more than one commissioning couple.

Conditions for offering ART services:

• ART procedures can only be carried out with the written informed consent of both the party seeking ART services as well as the donor.
• The party seeking ART services will be required to provide insurance coverage in the favour of the oocyte donor for any loss, damage, or death of the donor.
• A clinic is prohibited from offering to provide a child of pre-determined sex.
• The Bill also requires checking for genetic diseases before the embryo implantation.

Rights of a child born through ART:

• A child born through ART will be deemed to be a biological child of the commissioning couple and will be entitled to the rights and privileges available to a natural child of the commissioning couple.
• A donor will not have any parental rights over the child.

National and State Boards:

• The Bill provides that the National and State Boards for Surrogacy constituted under the Surrogacy (Regulation) Bill, 2019 will act as the National and State Board respectively for the regulation of ART services.
• Key powers and functions of the National Board include:
  1. advising the central government on ART related policy matters,
  2. reviewing and monitoring the implementation of the Bill,
  3. formulating code of conduct and standards for ART clinics and banks, and
  4. overseeing various bodies to be constituted under the Bill.
• The State Boards will coordinate enforcement of the policies and guidelines for ART as per the recommendations, policies, and regulations of the National Board.

Offences and penalties:

• Offences under the Bill include:
  1. abandoning, or exploiting children born through ART,
  2. selling, purchasing, trading, or importing human embryos or gametes,
  3. using intermediates to obtain donors,
  4. exploiting commissioning couple, woman, or the gamete donor in any form, and
  5. transferring the human embryo into a male or an animal.
• These offences will be punishable with a fine between five and ten lakh rupees for the first contravention.
• For subsequent contraventions, these offences will be punishable with imprisonment for a term between eight and 12 years, and a fine between 10 and 20 lakh rupees.
• Any clinic or bank advertising or offering sex-selective ART will be punishable with imprisonment between five and ten years, or fine between Rs 10 lakh and Rs 25 lakh, or both.
• No court will take cognisance of offences under the Bill, except on a complaint made by the National or State Board or any officer authorised by the Boards.

Need for the ART Regulation Bill:

• The need to regulate the Assisted Reproductive Technology Services is mainly to protect the affected Women and the Children from exploitation
• The Bill regulates the Assisted Reproductive Technology services in the country. Consequently, infertile couples will be more ensured/confident of the ethical practices in ARTs
• The Bills- ART & SRB can overcome the social stigma of being childless and respecting the reproductive rights of a woman.
• India is among countries that have seen the highest growth in the number of ART centres and ART cycles performed every year.
• India has become one of the major centres of the global fertility industry (ART), with reproductive medical tourism becoming a significant activity the need to regulate it is a much needed step.

Concerns regarding the Bill:

• The Bill allows for a married heterosexual couple and a woman above the age of marriage to use ARTs. It excludes single men, cohabiting heterosexual couples and LGBTQI individuals and couples from accessing ARTs.
• This violates Article 14 of the Constitution and the right to privacy jurisprudence of Puttaswamy Case 2017 , where the Supreme Court held that “the sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being” concerned all individuals irrespective of their social status and were aspects of privacy.
• In Navtej Johar, Justice Chandrachud exhorted the state to take positive steps for equal protection for same-sex couples.
• Unlike the Surrogacy Regulation Bill, there is no prohibition on foreign citizens accessing ARTs. Foreigners can access ART but not Indian citizens in loving relationships. This is an illogical result which fails to reflect the true spirit of the Constitution.
• It does little to protect the egg donor. Harvesting of eggs is an invasive process which, if performed incorrectly, can result in death.
• The Bill requires an egg donor’s written consent but does not provide for her counselling or the ability to withdraw her consent before or during the procedure, unlike for commissioning parties.
• She receives no compensation or reimbursement of expenses for loss of salary, time and effort. Failing to pay for bodily services constitutes unfree labour, which is prohibited by Article 23 of the Constitution.
• The commissioning parties only need to obtain an insurance policy in her name for medical complications or death; no amount or duration is specified. The egg donor’s interests are subordinated in a Bill proposed in her name.
• The Bill restricts egg donation to a married woman with a child (at least three years old). Even here, egg donation as an altruistic act is possible only once a woman has fulfilled her duties to the patriarchal institution of marriage.
• Children born from ART do not have the right to know their parentage, which is crucial to their best interests and protected under previous drafts.
• The Bill requires pre-implantation genetic testing and where the embryo suffers from “pre-existing, heritable, life-threatening or genetic diseases”, it can be donated for research with the commissioning parties’ permission. These disorders need specification or the Bill risks promoting an impermissible programme of eugenics.

ART Bill vs Surrogacy Bill

• Although the Bill and the SRB regulate ARTs and surrogacy, respectively, there is considerable overlap between both sectors. Yet the Bills do not work in tandem.
• Core ART processes are left undefined; several of these are defined in the SRB but not the Bill. Definitions of commissioning “couple”, “infertility”, “ART clinics” and “banks” need to be synchronised between the Bills.
• A single woman cannot commission surrogacy but can access ART. The Bill designates surrogacy boards under the SRB to function as advisory bodies for ART, which is desirable.
• However, both Bills set up multiple bodies for registration which will result in duplication or worse, lack of regulation, e.g. surrogacy clinic is not required to report surrogacy to National Registry.
• Also, the same offending behaviours under both Bills are punished differently + punishments under the SRB are greater. Offences under the Bill are bailable but not under the SRB.

The Surrogacy (Regulation) Bill, 2020

• The Surrogacy (Regulation) Bill, 2020 proposes to regulate surrogacy in India by establishing National Board at the central level and State Boards and Appropriate Authorities in the States and Union Territories.
• The major benefit of the Act would be that it will regulate the surrogacy services in the country.
• While commercial surrogacy will be prohibited including sale and purchase of human embryos and gametes, ethical surrogacy to the Indian Married couple, Indian Origin Married Couple and Indian Single Woman (only widow or Divorcee) will be allowed on fulfillment of certain conditions.
• As such, it will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy.

Way forward

• ART Regulation Bill 2020 follows the introduction in Parliament of the Surrogacy Regulation Bill 2020, and the approval of the Medical Termination of Pregnancy Amendment Bill 2020. These legislative measures are path breaking steps to protect women’s reproductive rights.
• However, the above mentioned concerns have to be addressed in order to make India an egalitarian society.
• Heterosexual couples and LGBTQI community have fought a long way for recognition of their rights, to give them their equal share of rights is the duty of the law makers in the country.

Source: Indian Express

Prelims question:

Q. With reference to Assisted Reproductive Technology (ART) and Surrogacy, consider the following statements:

1. Surrogacy is allowed for only Indian married couples. ART procedures are open to married couples, live-in partners, single women, and also foreigners.
2. The Assisted Reproductive Technology Regulation Bill 2021 replaces the Surrogacy (Regulation) Bill 2019.
3. Foreigners can visit India under medical tourism to avail ART services.

Which of the statements given above are correct?

(a) 1 and 2 only

(b) 2 and 3 only

(c) 1 and 3 only

(d) 1, 2 and 3

Answer: (c)