Abstract
The present legislative comment analyses the Assisted Reproductive Technology (Regulation) Bill, 2020 which was introduced in September, 2020 in the Lok Sabha. The need for ART has grown so much so that it requires a legislative framework to regulate the same. The efforts have been made previously as well, to legislate the same through an enactment in 2008 but that failed due to its reasons. Now, more than ever this need has grown so as to manage the clinics as well as make sure that no illegal or unethical practices takes place due to non-legislation on this particular matter. Thereby, the law was introduced with a new perspective in the Parliament and therefore, it is necessary to analyse the same.
Introduction
The Assisted Reproductive Technology (ART) is a very important parameter that seeks to provide for the measures to help in pregnancy. It was generally used for infertility but has been seen to be applied in the surrogacy procedures as well. It is a method which includes procedures like in-vitro fertilization (IVF), i.e. also called test tube baby; cryopreservation or cryopreservation, which involves preservation of gametes or embryos by cooling them at low temperature; intracytoplasmic sperm injection (ICSI), whereby a targeted sperm is injected with egg; intrauterine insemination (IUI), where a sperm is placed directly in the uterus at the time period when the eggs are fertilized. The assisted reproductive technology has certain features: it takes place with the aid of a technology; and helps in reproduction process. In surrogacy, a women through arrangement (like an agreement) consents to bearing of the child through the process of ART. Generally, it is confused that surrogacy comes under ART but it is a misconception. Surrogacy process uses the method of ART because the actual bearing of the child is undertaken by another woman. Mostly, the IVF is used in surrogacy which is an ART medical procedure.
Evolution
The Assisted Reproductive Technology Bill, 2020 was introduced in September, 2020 in the Lok Sabha. At present, it is referred to the Select Committee on Health and Family Welfare to give report back with their suggestions in three months regarding the bill as of October, 2020. After the report comes, the status of the Bill will be clear in Rajya Sabha for its further implementation. But before going ahead, it is necessary to look at a brief evolution of the Assisted Reproductive Technology in India with specific regard to its legal evolvement. The efforts that were made can be seen by the Indian Council of Medical Research (ICMR), which is a government organisation and funded by the Ministry of Health and Family Welfare, in 2005 issued the guidelines on the regulation of ART. The major step towards and recognition of ART was through the Assisted Reproductive Technology Bill, 2008 that was brought for the first time. Eventually through amendments, its final version was brought in 2017 though it wasn’t enacted. After the talks for the surrogacy arose again for enactment on that matter as well, the need for ART regulation was felt as well. Earlier the talks took place in February 2020 and later the draft was presented in the Lok Sabha in September 2020 for the regulation.
Objective of the Bill
The Assisted Reproductive Technology or ART has grown a lot in certain years. The need and demand of it is increasing at a high rate. Yet, there does not exist a legal framework to govern the basic mechanisms and requirements. A regular check is indeed necessary in regard to number of clinics performing such procedures and undertaking ART. It is because such a practice of record keeping will help in maintaining the ethical practices and safeguard from any violations or exploitation through such medical procedures. Furthermore, it would help the masses to have a compact detail of such clinics and ART banks that would help potential couples, women, etc. in availing such opportunities. Moreover, at a larger perspective it would help in the medical tourism in India in regard to ART practices.
What can expect is the procedure safeguard for the ART process. Since a medical process and no regulation in the matter will make the parties unsure to go for ART which helps people in pregnancy. Therefore, the safety and along with it the availability of such procedures throughout the countries should be in such a manner that it can be approached. When the procedures are safe and the clinics are accounted for their acts through effective legislations, the trust of the clients or patients increase and along with it there is increase in the undertaking of such procedures. It would help people to come forward and take part in these procedures which in turn would increase the ART market and the reliability in the procedure for handling of pregnancy related issue and not only through adoption but through varied methods. Thus, an option will be available to the prospective patients to choose the method of pregnancy and the way as well.
Provisions in the Bill
Chapter I (Section 1 to 2) are preliminary ones. The preliminary provisions define the application of the Bill and provide definition of terms like assisted reproductive technology, assisted reproductive technology clinic, commissioning couple, egg, embryo, women, etc.
Chapter II (Section 3 to 14) is headed as authorities to regulate assisted reproductive technology and is further divided into different parts.
Part A of Chapter II (Section 3 to 5) talks about the National Board. National Board will be the same as constituted under Section 15 of the Surrogacy Act and all other provisions in regard to its constitution will apply for the purpose of this Act as well. Further, the function of the National Board under the present Act will be to advice the Central Government; review and monitor the implementation under the Act; to supervise National Registry; to lay code of conduct for people in clinics and to set minimum standards as required; to oversee the work of bodies under ART Act.
Part B of Chapter II (Section 6 to 8) mentions the State Board. The State will be the one as constituted under the Surrogacy Act through Section 24. Further, all other provisions related to it under the Surrogacy Act will apply for this Act as well. The functions of the State Board will be implement policies, recommendations and regulations as given by the National Board; to co-ordinate and help in its enforcement; and such other functions as may be prescribed. They also have the power to pass orders as may be directed by the National Board.
Part C of Chapter II (Section 9 to 14) mentions the National Registry and the Registration Authority. Their function is to create a central database of the clinics and banks that are offering such services. This information will aid the National Board in policy making. Further, it says that the Registration Authority will also be appointed by Central and State governments for the purpose of giving the registration to the bank and clinics and along with that look into complaints, take a legal action, suspend or cancel registration, etc.
Chapter III (Section 15 to 20) is important as it details about the procedure for registration. The detailed procedure is discussed under this chapter whereby after making the application for the same, the Registration Authority can accept or reject it within 30 days of receiving the same. The registration is for 5 years and needs to be renewed further. It also gives details for suspension or cancellation of registration if a complaint is received by it.
Chapter IV (Section 21 to 31) is of great importance as it enlists the duties of the assisted reproductive technology clinic and the assisted reproductive technology bank. The banks and clinics shall make sure of the eligibility of the clients and give counselling to the couples and woman, inform them about the advantages, cost, disadvantages, procedures, etc. Along with that there are wide duties given and described under the Bill. The important provision of the Bill is that of written informed consent of the parties which is a necessary to be taken. They also have to keep the records.
Chapter V (Section 32 to 37) moves forward with giving of the offences and penalties under the present enactment. The offences are provided whereby if the medical practitioner, etc. or any person is punishable on certain grounds like importation of embryos, transfer it to a male person or animal, sell it etc. At first contravention fine is there and on second, punishment of eight to twelve years is prescribed with fine. The cognizance is taken by the complaint of National or State Board or person authorized to the court of Metropolitan or Judicial Magistrate of First Class. The offences are cognizable and bailable. The clinics and banks can also be prosecuted. One of the important provisions is of sex selective assisted reproductive technology whereby it says to not issue, publish etc. regarding such facilities otherwise punishment of 5 to 10 years is prescribed.
Lastly, Chapter VI (Section 38 to 46) ends with the miscellaneous provisions under the enactment. The miscellaneous procedures deals with the powers that are given to the Central government to issue directions, State Government’s power, protection from action if it is done in good faith, power to make certain rules and regulations, etc.
Impact of the Bill
The bill when passed will impact hugely. It would aid in governing the surrogacy by prescribing the method of it through ART which in itself will be regulated. Surrogacy has helped many couple in the way and through ART legislation; it would give a benefit to them for regulating such clinics and process of pregnancy. The regulation will ensure that the ethical workspace is created by the clinics and no undue advantage is taken in the form of no-legislation on the matter. More than that, the regulation is necessary so that the procedure such as abortion does not happen. It will help in protecting the rights of women through such legislation.
The impact of the Bill is huge because of the reproductive rights of the people. One of the important needs of this legislation grew because of the right of the person in regard to their reproductive choices. These choices are of paramount importance as they form part of the right to life and personal liberty as is given under Article 21. This was held in the judgement of the apex court that is Suchita Srivastava V. Chandigarh Administration where the court also said that the reproductive choice includes within it pregnancy as well. Thereby, in consonance with the Constitution, it will have an impact by giving choice to people in regard to insinuating the reproduction process by different methods. This would include in regard to pregnancy as well.
Yet even after having such a progressive legislation, the lacunas do exist in it. It prevails in one of the major form where availing of ART has limited aspect. This limited application of ART to only couples who are heterosexual not only goes against the Constitution but is in violation of human rights of the LGBTQ+ community. When the apex court in the landmark case of Joseph Shine V. Union of India has explicitly decriminalized the offence under Section 377 and has held that LGBTQ+ community has the right of equality under Article 14, 15, and 21 of the Constitution of India as well; then such a restriction in ART Bill acts as a barrier and in violation of the Constitution. Furthermore, the uniform civil rights to them are of significance to establish the equality and non-discrimination. It will give them the right to go for methods of ART for pregnancy as a part of their right to choice. Moreover, the court has said that right to privacy is also a part of Article 21 in the case of Justice K. S. Puttaswamy (Retd.) V. Union of India whereby the privacy of a person is to be upheld and cannot be curbed through arbitrary legislation. Thereby, when such a law prohibits ART for a certain section of society on certain basis, it evades their privacy as well.
Conclusion
Thus, it can be concluded that the Assisted Reproductive Technology or ART Bill is a much necessary requirement in the present times. It is needed so as to regulate such medical procedures. Yet there are certain lacunas on the way which needs to be corrected or replaced so that there can be effective implementation along with that the consonance with the real scenario. Unless that is done, it would act as a barrier in the advancement of the assisted reproductive technology method in India which has seen a huge demand now among domestic as well as international clients.
AUTHOR:
Arushi Anand
College: Vivekananda Institute of Professional Studies