The Laws leaving behind the Reproductive rights and Freedom of Choice

Recently, Petitions against the Surrogacy (Regulation) Act 2021 and the Assisted Reproductive Technology (Regulation) Act 2021 (ART Act) have been filed before the Supreme Court challenging the Acts as being discriminatory and violative of reproductive autonomy and choice by denying access to Assistant Reproductive Technologies (ARTs) to single persons and people in live-in and same-sex relationships.

Let us assess the provisions of both laws.

What is Surrogacy?

Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s).

A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries, and gives birth to a child for another person or couple (intended parent/s).

• Altruistic surrogacy: It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
• Commercial surrogacy: It includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

The Surrogacy (Regulation) Act, 2021:

• Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
• It also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs.10 lakhs.
• The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child.

Assisted Reproductive Technology Act, 2021

• The act defines 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.

• ART services will be provided through:
• ART clinics, which offer ART-related treatments and procedures, and
• ART banks, which store and supply gametes.
• Rights of a child born through ART:
• A child born through ART will be deemed to be a biological child of the couple (commission couple) and will be entitled to the rights and privileges available to a natural child of the commissioning couple.
• A donor will not have any parental rights over the child.
• The National Registry will be established under the act and will act as a central database with details of all ART clinics and banks in the country.
• The State governments will appoint registration authorities for facilitating the registration process. The Clinics and banks will be registered only if they adhere to certain standards (specialized manpower, physical infrastructure, and diagnostic facilities).

Need for the regulated industry in India:

• In India, ARTs are offered by an expensive privatized medical industry that was unregulated for decades.
• The technologies can be used to transform traditional notions of family and strengthen the status of same-sex and other queer couples by expanding the ability to reproduce beyond heterosexual marital unions.
• The use of ARTs can also entrench notions of genetic parenthood as the “true” form of parenthood.
• ARTs provoke complex legal, ethical and social dilemmas, and their regulation requires consideration and balancing of conflicting interests and values.
• Therefore, the law has been introduced for the related issues.

What are the loopholes identified?

• Leaving the other stakeholders’: The Acts allow only married infertile couples and certain categories of women to avail of ARTs and surrogacy.
• No Compensatory Allowance to the Surrogate mother: The sale of gametes and any payment to the surrogate mother, other than insurance coverage and medical expenses, has been prohibited. Clinics and banks offering ART procedures have to be registered.
• Health issues associated: The availability of donor oocytes, considered fundamental for many ART procedures, is also in question since a limited number of oocytes can be retrieved and women can be oocyte donors only once. Such stipulations have been imposed to protect oocyte donors from health risks and exploitation. Shortage of oocytes due to regulatory pressures may lead to a shadow market of gametes.
• Privacy issues: The ART Act also requires the oocyte donor to share their Aadhaar number, which threatens the donors’ privacy.

Arguments in favor of Compensatory Surrogacy:

• A Parliamentary Standing Committee in 2017 recommended compensated surrogacy and stated that mandating altruistic surrogacy was based on moralistic and paternalistic assumptions, and expecting free reproductive labor from women was “grossly unfair and arbitrary”.

Against Commercial surrogacy:

A Parliamentary Select Committee which examined the Surrogacy (Regulation) Bill 2019 took the stand that commercial surrogacy was unethical and antithetical to the “noble” and “selfless” instinct of motherhood.