Assisted Reproductive Technology (Regulation) Bill, 2020: Issues and Concerns
The proposed bill has enlightened a spark of hope showcasing positive steps to safeguard the reproductive rights of women by creating a protective shield questioning the fickle-minded service providers for their misconduct.
The Assisted Reproductive Technology (Regulation) Bill, 2020 was introduced in the Lok Sabha on 14 September 2020. The bill is now under the consideration of the Parliamentary Standing Committee on Health and Family Welfare. The Bill aims to regulate the Assisted Reproductive Technology (ART) clinics and banks involved in unethical practices, and to uphold the reproductive rights of the infertile parents. It provides a wide range of definitions for ART.
The Bill defines artificial insemination as the procedure of artificially transferring semen into the reproductive system of a woman and includes insemination with the husband’s semen or with the donor’s semen. It describes 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.
The ART presents an alternative to deal with the problem of infertility and fosters liberty of procreation and provides freedom of choice to live a family life with dignity. Infertility is the major problem in India faced by large chunk of our population. They resort to the ART for fulfilling their desire to have biologically related child to avoid the social stigma of being childless. These technologies are part and parcel of these parents who are depended on ART services for seeking biological parenthood by advancing their reproductive rights. Their vulnerability forces them to face deficiency of services with poor-quality treatment,which causes serious health concern for the affected women and child.
The ART Bill is relevant to formulate code of conduct for making the ART service providers more accountable for the detrimental impact of the services on the infertile parents.
The unethical profit drive of the service providers not only impacts the reproductive health of the women, but also affects the intellectual minds of the newborn child and lead to serious health issues. The majority of ART clinics and banks are run by private entities and they endanger the life of the people availing these services just for the sake of fulfilling their profit motives. There is need for standardised protocols for treatment and services to bind these entities and inflict liability on them in case of non-compliance of the norms.
The ART bill allows only married couples and unmarried single women to access these services. It limits the certain class of people such as transgender, intersex individuals and those in live-in relationship from exercising their reproductive autonomy by neglecting their rights. It entrenches on their personhood and right to privacy. Restricting certain sections of society from availing such services unjustly foster discrimination and encroaches upon their full participation in society. This illogical division for eligibility of accessing the ART services creates unnecessary restrictions on the marginalized section of society without any justification. There is need of reforms in the bill to provide equality of reproductive rights to excluded section of society.
There is a provision in the bill to maintain national registry of ART clinics on the discretion of Central Government. There should be registration of all ART clinics and banks in the country showcasing the services provided by them and stating the outcome of their services. This provision attracted lot of criticism in the context of violation of right to confidentiality and privacy. This provision is said to violate the principle laid down in the landmark judgment of Justice K.S. Puttaswamy v. UOI as the current provision infringes upon fundamental right to medical privacy under Article 21 enshrined in the Constitution of India. The criticism on privacy is a valid one. However, we cannot neglect that the provision to provide outcome of the services to the infertile parents is fruitful for the couples seeking ART services. This will end up all kinds of insecurities in the minds of couples and boost confidence in these services exhibiting transparency in the system. Hence there has to be certain reforms in the bill to balance the aspect of privacy and confidence of people in the ART services.
The bill aims to create greater transparency in the working of the ART clinics as it entails guidelines to disclose all relevant information that would assist in the informed decisions by those availing these services. They are bound to provide complete information inclusive of stating the reason for selecting a particular treatment, associated risks, side-effects, and success rate of particular treatment procedure to administer well –informed decision from the clients. The present bill lacks the standard rules to ensure proper counseling provided to the clients. The counseling should not be a one-time affair rather a continuous process so that even after procreating the child the beneficiaries have opportunity to get expert advice in case of any complications that might arise. The counseling should be done in the language deemed to be comfortable for the client to facilitate better communication and the use of jargons should be fully avoided to foster clarity among them.
The bill proposes stringent punishment for those “practicing sex selection, sale of human embryos or gametes and running agencies/rackets/organization for such unlawful practices. It restricts the commercial model and vehemently supports the altruistic model as per which the gamete donor should aid in gamete collection without any monetary benefit. The reality is that majority of the gamete donors are driven by the incentive they receive as consideration. It is reasonably foreseeable that promoting the altruistic form of gamete donation as the most acceptable form is likely to cause shortage of gamete donors in the near future. The restriction imposed on the eligibility of the one undergoing gamete donation that he/she must be married and should have a child of minimum three years further contribute to paucity of gamete donors. Such limitation imposed on them is unnecessary as there is no medical requirement of the aforesaid provision. It implies that such provisions per se are hampering the accessibility of the ART services to the indigent people owing to lack of gamete donors by imposing such incoherent restrictions.
It is responsibility of the government to promote large-scale awareness of gamete donation to encourage people to donate gametes on altruistic basis.
This will indeed contribute to bring down the culture of sale of gametes on commercial aspect. The bill remains silent on the rights of egg donors and thus does not provide any security to the life of people undergoing gamete donation. This invasive process of gamete donation needs to be performed cautiously otherwise it may also result in death of the person donating the eggs. The absence of remedies to the gamete donors in such uncertain circumstances further deters them to undergo gamete donation. This further adds to the problem of paucity of gametes and thus hampers the reproductive rights of certain class of people. There has to be formulation of proper code of conduct to provide security to the gamete donors so that the persistent problem of shortage of gametes can be minimized to a greater extent.
The proposed bill has enlightened a spark of hope showcasing positive steps to safeguard the reproductive rights of women by creating a protective shield questioning the fickle–minded service providers for their misconduct. However, there are certain provisions in the bill that need to be reaffirmed by reexamining the lacunae in the bill and providing avenues for healthy public discussions conducive to advance achievement of the essence of the bill and put a halt on the unethical conduct of the ART service providers ensuring strict enforcement of the ART laws.