ART, surrogacy bills: The lapses and the limitations
The laws could have had more imagination, both in their regulatory standard-setting style, and in protecting the rights and interests of all those involved
The Assisted Reproductive Technology (Regulation) Bill (ART Bill) and the Surrogacy (Regulation) Bill were passed by Parliament in December 2021, 12 years after the Indian Council of Medical Research first published a draft bill on this issue. Such a long process is to be expected when the subject is as fraught with moral complexity as this is.
However, the final law does not wholly reflect this complexity, leave alone address it satisfactorily. Both laws follow the template of Indian command-and-control regulation — the prohibition of certain activities without prior permission, inspections, multiple tiers of expert and official-heavy authorities, and a laundry list of criminal offences and penalties.
Apart from the fact that this regulatory model hasn’t been successful in other health-related contexts (the Drugs and Cosmetics Act, 1940, and the Clinical Establishments Act, 2010), these two laws only allow married men and women and single women access to ART services. This is a narrow, discriminatory way of understanding who might wish to be a parent.
These laws could have been a unique opportunity to officially recognise that families come in all shapes and sizes, but Parliament appears to have been reluctant to perform the function intended of it, preferring to pass the buck to the Supreme Court. The parliamentary standing committee report on the ART Bill, while deciding to exclude same-sex and live-in couples from ART services, notes that the court has only decriminalised such relationships, but not accorded them additional rights. These laws could have conferred this additional right to parent, but instead, are a huge setback for non-traditional families, who will have to look to the courts again.
There are other fundamental ethical questions that the ART Act fails to answer appropriately. For instance, it does not address whether children born using ART services have the right to access information about gamete donors. Although the standing committee report on the ART Bill, 2020, appears to acknowledge the right of such children to know the identity of donors, it is more concerned that such disclosure should not lead to property or inheritance disputes. There is no considered weighing of the rights of the commissioning couple or donor to privacy against the right of the child to know about their parentage. The department of health research responded to this issue before the committee by stating that this would be governed by regulations. The Act ultimately appears to state that this information is to be kept confidential, except in medical emergencies or through court orders, but still does not directly address the child’s right to know.
Similarly, while the Act sets age limits for men (21-55) and women (21-50) to access ART services, the government may frame rules to set additional criteria for eligibility. It is unclear what these criteria might encompass. Could this mean that persons with disabilities could be prevented from accessing ART services? Could background checks be conducted on those desiring to become parents in this way? Questions like these should be at the heart of any law on ART. These are questions about identity and choice, and above all, the contours of the right to parent. These should find expression in the law, not be delegated to the executive arm of government. Instead, the Act contains technical provisions that ought to have been left to the rules, such as the number of oocytes that may be retrieved from donors.
Both laws also miss the mark in their desire to protect children born out of ART. The Surrogacy Act prohibits surrogacy that will produce children for sale or exploitation. It is patently absurd for the law to prohibit an act for this purpose — since it is obvious that forcing children into prostitution is a criminal offence. The ART Act prohibits abandoning and disowning children and punishes this with imprisonment up to eight years. More than a criminal offence that is unlikely to deter these morally fraught acts, we need safety nets that are able to take care of such children. The law need not have the answer to every kind of social problem.
Instead, a law on an ethically knotty issue such as this could have had more imagination, both in its regulatory standard-setting style, and in protecting the rights and interests of those involved. The laws create an administrative architecture of appropriate authorities, state and national boards, similar to those under the Transplantation of Human Organs and Tissues Act, 1994, many of which are not functional, more than two decades after enactment. It isn’t clear why these are expected to be more effective under the ART Act. The authorities are large and unwieldy (each State Surrogacy Board comprises 20 persons) and every ART clinic is expected to establish a grievance cell, when an independent ombudsman might have been the way to go.
The arbitrary restriction of reproductive autonomy by these laws will no doubt be challenged in court, but there must also be a much wider public conversation around the rules and regulations to be framed under it so that we can decide, as a society, how we want the law to govern our most intimate choices.
Dhvani Mehta is co-founder and lead, health, Vidhi Centre for Legal Policy
The views expressed are personal