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Overview: Assisted Reproductive Technology (Regulation) Bill, 2010

Jul. 28, 2020   •   Snehal Asthana

INTRODUCTION:

Assisted Reproductive Technology (ART) has been defined under the Bill to mean “all techniques that attempt to obtain a pregnancy by handling or manipulating the gametes, the sperm or the oocyte outside the human body, and transferring the fertilized embryo into the reproductive tract of the woman.[1] Fertility therapies where eggs and sperm are manipulated involve surgically removing eggs from women and combining them with sperm in the laboratory.[2]

Definition of Infertility: It refers to the biological inability of an individual to contribute to conception, or to a female who cannot carry a pregnancy to full term. 7-26% of couples worldwide[3].

Causes of Infertility:

  • Delayed marriage and child-bearing
  • Sexually transmitted diseases
  • Hormonal contraception
  • Abortion
  • Obesity
  • Environmental Pollution

Types of Assisted Reproductive Fertilisation:[4]

In Vitro Fertilization: IVF is a method in which egg cells are fertilized by sperm cells outside the mother’s womb.[5]

Intracytoplasmic Sperm Injection: Intracytoplasmic sperm injection involves the direct injection of sperm into eggs obtained from In vitro fertilization[6].

Intrauterine Insemination: IUI is a fertility treatment that involves placing sperm inside a woman’s uterus to facilitate fertilization.[7]

Gamete Intrafallopian Tube Transfer: GIFT is an assisted reproductive procedure that involves removing a woman’s eggs, mixing them with sperm, and immediately placing them into a fallopian tube.[8]

Zygote Intrafallopian Transfer: ZIFT is an assisted reproductive procedure similar to in vitro fertilization and embryo transfer, the difference being that the fertilized embryo is transferred into the fallopian tube.[9]

Surrogacy: Surrogacy is the practice by which a woman becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children.[10]

DISCUSSION OF THE TOPIC AND MAJOR FINDINGS:

The Assisted Reproductive Technologies (Regulation) Bill, 2010 [henceforth to be known as the ‘Bill’] aims to fill the void that exists in the legal regulation of surrogacy in India. The Bill defines surrogacy as[11] “...an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belongs to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate.”

However, the incorporation of the state of reality in the Bill as it is, could also be the direct effect of the only decision of the Apex Court relating to surrogacy, Baby Manji Yamada vs. Union of India and Another[12] the SC stated that. “We need not go into………..whether bona fides are involved or not.” “Surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party.”

In order to be able to enter into valid surrogacy agreements, the following is essential:[13]

  1. Either of the commissioning couples must be infertile and also, or, the commissioning mother must be incapable of carrying a baby to full term;
  2. The commissioning couple should either be married heterosexual couples or in an unmarried heterosexual relationship. Individuals can also apply for surrogacy. However, homosexual couples living together and who are Indian citizens, are not recognized as commissioning couples when both apply together.
  3. ‘Single’ commissioning persons (male or female) must prove infertility or prove inability to carry a baby to full term (in case of single female) by the commissioning mother in case of a single woman or a couple.
  4. The status of homosexual commissioning couples who are not citizens of India depends on their legal right to marry under the law of their country. The question of whether they, as a couple, will be allowed to go for a surrogacy agreement in India is a matter of future legislative deliberations.
  5. A couple or an individual shall not have the service of more than one surrogate at any given time.
  6. A couple shall not have the simultaneous transfer of embryos in the woman and in a surrogate.

RELEVANT LATEST CASES AND ITS ANALYSIS:

The provisions of the ART Bill and the Surrogacy Bill merit scrutiny are discussed further. For instance, only an ‘infertile couple’ is eligible to avail of ART under the ART Bill with the term ‘couple’ is narrowly defined to mean only a heterosexual relationship of a marriage or a live-in relationship. A man above 50 years and a woman above 45 years are not eligible for ART. The Surrogacy Bill bans commercial surrogacy and prescribes only altruistic surrogacy. Similar to the ART Bill, only an infertile Indian couple who have been married for at least five years and having no surviving child (with some exceptions) are eligible for altruistic surrogacy.

In Suchita Srivastava v. Chandigarh Administration[14] the Supreme Court equated the right to make a choice in relation to reproduction with personal liberty under Article 21 and clarified that such right includes within it the ‘privacy, dignity and bodily integrity’ of the woman and further stated that ‘taken to its logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children’.

In Devika Biswas v. Union of India[15], the Supreme Court recognized the “right to reproduction as an important component of the ‘right to life’ under Article 21. Thus, restricting ART and surrogacy only to heterosexual relationships within a certain age group and denying reproductive choices to LGBT, single persons, and older couples, would be a violation of Article 21.”

CONCLUSION:

That the Bill has been passed with the main intention to regulate an already existing surrogacy industry is apparent from the language of the Bill. There are still many areas where there are loopholes. There are many other criticisms to the Bill, like that relating to the rights of the child as well including its right to be nurtured by the one who gave birth to it through breastfeeding. In fact, the Bill does not even mention the period for which a newly born is to be kept with the surrogate mother.

The surrogate mother, which had in fact been the reason for the rolling of the wheels of the legislative process towards its much-needed protection is gravely overlooked or rather undermined. The bargaining power is further weakened by giving the ART Banks the power to maintain and allocate “surrogate duties”, placing them under their direct control. The better alternative rather could have been to put them under the control of the government or an autonomous government agency. A prospective surrogate’s replaceability in the “surrogate roll” and the justifiable desperation with which these women agree to be surrogate leaves them in a weaker position to make a really financially sound choice in an industry, which otherwise might not be able to thrive in their absence.

This article is authored by Tanzim Surani, a 4th-year student pursuing a 5-year law course [BA LLB (Hons.)] at the GLS Law College, Gujarat University.

Disclaimer: The article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our terms of use or write to us in case of any concerns.


[1] https://www.federalregister.gov/documents/full_text/xml/2015/08/26/2015-21108.xml, last accessed on, 23/06/2020

[2]Definition of, Assisted reproductive technology, Available on, https://infogalactic.com/info/Assisted_reproductive_technology, last accessed on, 23/06/2020

[3] https://www.cdc.gov/reproductivehealth/infertility/index.htm, last accessed on, 23/06/2020

[4] Preamble of, The ART (Regulation) Bill, 2010

[5] Definition of IVF, https://www.givf.com/fertility/ivf.shtml, last accessed on, 23/06/2020

[6] https://americanpregnancy.org/getting-pregnant/intracytoplasmic-sperm-injection/, last accessed on, 23/06/2020

[7] https://www.laoriginivf.com/project/intrauterine-insemination-iui/, last accessed on, 23/06/2020

[8] http://www.ihr.com/infertility/gift-zift-tet.html, last accessed on, 23/06/2020

[9] Ibid.

[10] Introduction and Expending Horizons of ART, By Sandeep Kulshrestha

[11] Section 2(aa) “surrogacy”

[12] (2008) 13 SCC 518 at 521

[13] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3086466/, last accessed on, 23/06/2020

[14] 2009(9)LC4151(SC):2009AIRSCW5909:2009(5)LHSC3204.2009(12)Scale813

[15] https://www.escr-net.org/caselaw/2017/devika-biswas-v-union-india-others-petition-no-95-2012


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