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There are several issues with the Assisted Reproductive Technology Bill and these issues need consideration before the passage of the Bill.

What the Bill aims to achieve

• Union Health Minister introduced the Assisted Reproductive Technology (Regulation) Bill, 2020 (Bill) in the Lok Sabha.
• Its aim is to regulate ART banks and clinics, allow safe and ethical practice of ARTs and protect women and children from exploitation.
• The Bill was introduced to supplement the Surrogacy (Regulation) Bill, 2019 (SRB), which awaits consideration by the Rajya Sabha after review by two parliamentary committees.

Concerns with the Bill

1)  Exclusion in the access of ART

• .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, where the Supreme Court held that “ the liberty of procreation, the choice of a family life” concerned all individuals irrespective of their social status and were aspects of privacy.
• In Navtej Johar case, Justice Chandrachud exhorted the state to take positive steps for equal protection for same-sex couples.
• Unlike the SRB, there is no prohibition on foreign citizens accessing ARTs.
• Foreigners can access ART but not Indian citizens in loving relationships.
• This fails to reflect the true spirit of the Constitution.

2) Consent

• The ART Bill 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.
• 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).

3) Threat of eugenics

• The Bill requires pre-implantation genetic testing.
• If 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.

4) Overlap with Surrogacy Regulation

• There is considerable overlap between ART and SRB sectors. Yet the Bills do not work in tandem.
• Core ART processes are left undefined; several of these are defined in the SRB.
• 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 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.
• Finally, records have to be maintained for 10 years under the Bill but for 25 years under the SRB.
• The same actions taken by a surrogacy clinic and ART clinic  attract varied regulation.

Other concerns

• 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.
• There is no distinction between ART banks and ART clinics, given that gamete donation is not compensated, economically viability of ART Banks raises a question.
• In previous drafts, gametes could not be gifted between known friends and relatives if this is not changed, gamete shortage is likely.
•  The Bill’s prohibition on the sale, transfer, or use of gametes and embryos is poorly worded and will confuse foreign and domestic parents relying on donated gametes.
• Unusually, the Bill requires all bodies to be bound by the directions of central and state governments in the national interest, friendly relations with foreign states, public order, decency or morality — being broadly phrased, it undermines their independence.

Way forward

• The Bill to maintain a grievance cell but clinics must instead have ethics committees.
• Mandated counselling services should also be independent of the clinic.
• The poor enforcement of the PCPNDT Act, 1994, demonstrates that enhanced punishments do not secure compliance — lawyers and judges also lack medical expertise.
• Patients already sue fertility clinics in consumer redressal fora, which is preferable to criminal courts.

Conclusion

The Bill raises several constitutional, medico-legal, ethical and regulatory concerns, affecting millions and must be thoroughly reviewed before passage.