Throughout the draft ART (Regulation) Bill, the role and importance of the husband has been over-emphasised. It debars single women from availing ART services, violating their fundamental right to procreation
Over the past few years, Assisted Reproductive Technologies (ARTs) – a group of technologies that assist in conception – have led to the phenomenal growth in the Indian ‘fertility industry’. The ART business is an integral part of India’s booming medical market and medical tourism industry. However, there is no law so far to regulate and monitor the functioning of the ever increasing number of ART clinics. In 2005, the Indian Council of Medical Research (ICMR) issued guidelines for the accreditation, supervision, and regulation of ART clinics. However, these guidelines are not legally binding on ART clinics. Several studies and media reports have highlighted the rampant unethical and illegal practices of ART clinics where they exploit desperate infertile couples and vulnerable surrogate mothers for commercial gain.
The ART (Regulation) Bill, 2014 – now placed in the public domain by the Ministry of Health and Family Welfare for comments and suggestions – proposes to establish a National Advisory Board, State Advisory Boards and a National Registry for the accreditation, regulation and supervision of ART clinics and ART banks. The core responsibility of these regulatory bodies, according to the draft Bill, is to prevent the misuse of ARTs and ensure safe and ethical ART services. The scope is ambitious and a mammoth infrastructure with matching human resources will be needed to operationalise the proposed regulatory bodies.
In a significant move, the proposed law has placed the onus on ART clinics to prove their innocence in case of the death or disability of either the oocyte donor or surrogate mother. It has also proposed a system of graded penalties/ compensation depending on the degree of negligence. Currently, there is no system in place to address the issue of medical risks including deaths occurring during oocyte donation or surrogacy. There have been instances of deaths of oocyte donors during the procedure. In 2014, Yuma Sherpa, an egg donor for s surrogate, died just after she went through an oocyte retrieval procedure at a fertility clinic in Delhi. The proposed legislation promises to address the rampant malpractices prevalent in the ART industry.
Notwithstanding the urgent need to regulate and monitor the ART industry, the draft Bill, which embodies several problematic clauses, requires certain fundamental changes, corrections and improvements before it is made into a law. One of the major problems is that the draft Bill is premised on patriarchal values and identifies women based on the narrow definition of their marital status.
Single women shut out
Throughout the draft Bill, the role and importance of the husband has been over-emphasised. It debars single women from availing ART services, violating their fundamental right to procreation. In fact, this clause is in contradiction to the existing law which allows a single woman to adopt a child.
Similarly, the draft Bill prohibits unmarried women from becoming oocyte donors or surrogate mothers. Only married women with proven fertility can become surrogate mothers or donate their eggs. On the other hand, when it comes to semen donation there are no such restrictions on men.
In similar vein, mandatory consent of the oocyte donor’s spouse should be deleted from the Bill. A woman has her own individuality and can take decisions for herself and consent to it too. In any event, it would be discriminatory to require the woman to get consent of her spouse for donating her oocytes, when a man is not required to get the consent of his spouse for donating sperms. Further, single women – who may have never married, or be ‘ever married’ (including divorcees, widows, separated women, etc.) should also be allowed to donate under the Bill. How can such women get consent from their spouse, and why should they? These restrictive clauses, which reflect the dominant patriarchal values of our society, need to be reconsidered in favor of respecting the autonomy and freedom of women’s reproductive choices. In addition, one of the clauses of the draft Bill which prohibits a surrogate mother and her husband from having an extramarital relationship during the gestation period violates the rights of the surrogate and their family
Taint of eugenics
Certain clauses of the ART (Regulation) Bill are reflective of eugenic thinking, which has the potential to further reinforce and propagate prejudices and discriminations based on class, caste, gender and ethnicity.
Although the proposed law prohibits ART banks from disclosing the names, identities and addresses of gamete donors and surrogate mothers, it allows the commissioning couples to seek information regarding height, weight, ethnicity, skin color, educational qualification, medical history of the donor, etc. Parliamentarians need to seriously reflect on these clauses, as they have the potential to promote eugenic practices.
ARTs, including in the context of surrogacy, are highly invasive procedures which pose serious health risks to oocyte donors and surrogate mothers. It is, therefore, extremely necessary that the proposed law makes it mandatory for ART clinics and banks to inform oocyte donors and surrogate mothers about the potential health risks associated with the ART procedures. Currently the draft Bill only talks about seeking consent – which is qualitatively different from a comprehensive informed consent procedure.
The draft Bill has proposed to make the Aadhar card the primary identification document for gamete donors and surrogate mothers. The law makers should revisit this clause as it may lead to exclusion and discrimination. Making Aadhar mandatory under this law is in any case violative of the directives of the Supreme Court. There are many identity proofs used officially, and any of them may be used as a proof. This clause should be deleted or amended appropriately,
Given the exponential growth of the ART industry in the last one decade, its regulation and monitoring has become the need of the hour. Past experiences teach us that the creation of parallel administrative and regulatory structures and bodies do not necessarily lead to better results. We have seen how the PC&PNDT Act created separate bodies and institutions to curb the menace of sex selection, whose satisfactory implementation continues to pose a huge challenge. Making a law is one thing but implementing it has always posed a serious challenge. While it is important to enact a law and create and implement regulatory mechanisms to monitor ART clinics and surrogacy arrangements, the understanding and emphasis on upholding the rights of women and children located in this industry – including egg donors and surrogates – will make the real difference.