Bill of Exclusions

Context: The recently introduced Assisted Reproductive Technology Bill raises constitutional, medico-legal, regulatory concerns and needs a thorough review. 

Features of Assisted Reproductive Technology (Regulation) Bill, 2020

• Regulation of Assisted Reproductive Technology (ART): Its aims to regulate ART banks and clinics, allows for the safe and ethical practice of ARTs and protect women and children from exploitation.

• Access to ART: It allows for married heterosexual couples, a woman above the age of marriage and foreigners to use ARTs.

Concerns with the ART Bill, 2020

• Denial of access to ART to certain sections: 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, as described by the Supreme Court in the K.S Puttaswamy Case.
• Not available to live-in couples: which is illogical and fails to reflect the true spirit of the Constitution.
• It restricts egg donation to a married woman with a child (at least three years old).

• Does little to protect the egg donor: Failing to pay for bodily services constitutes unfree labour, which is prohibited by Article 23 of the Constitution. 

• No provisions for the egg-donor to undergo counselling and the ability to withdraw her consent.
• No compensation or reimbursement of expenses for loss of salary, time and effort

• No amount or duration of insurance specified: Commissioning parties only need to obtain an insurance policy in egg-donor’s name for medical complications or death.
• Patriarchal challenges to the Bill: Egg donation as an altruistic act becomes possible only once a woman has fulfilled her duties to the patriarchal institution of marriage.

• The Bill risks promoting an impermissible programme of eugenics: The Bill deregulates provisions for the donation of embryo suffering from “pre-existing, heritable, life-threatening or genetic diseases” to research with the commissioning parties’ permission.

• Loss of rights to Children Born from ART: as they do not have the right to know their parentage.

• Not in tandem with Surrogacy (Regulation) Bill (SRB), 2019:

• Core ART processes are left undefined, while several of them are defined in the SRB. For, E.g. definitions of commissioning “couple”, “infertility”, “ART clinics” and “banks”.
• Increased Duplication and Complexities: Both Bills set up multiple bodies for registration which will result in duplication

• Different Reporting Process: e.g. surrogacy clinic is not required to report surrogacy to National Registry.
• Different Punishments: Same offending behaviours under both Bills are punished differently; Offences under the Bill are bailable but not under the SRB. 
• Records have to be maintained for ten years under the Bill but for 25 years under the SRB.

• Altruistic donation threatens the financial viability of ART banks: Shortage of gamete donation is likely, and it is unclear how the Banks would be compensated to make them economically viable in future.

• Confusing provisions: The provision of a prohibition on the sale, transfer, or use of gametes and embryo is poorly worded and will confuse parents relying on donated gametes.

• Absence of ethics committees: Clinics must have ethics committees, but the Bill instead requires clinics and banks to maintain a grievance cell which will remain one-sided.

• Mandated counselling is dependent on the clinic:  Ideally, it should be independent of the clinic.

• Compliance is not guaranteed: The SRB and ART Bills impose high sentences (8-12 years) and hefty fines. 

• Lack of medical expertise among lawyers and judges also impacts compliance as demonstrated by poor enforcement of the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994.
• Undermines the independence of regulatory bodies: 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.