Bill of Exclusions

The Indian Express     9th October 2020     Save    
QEP Pocket Notes

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.
QEP Pocket Notes