With the Surrogacy Act, the judiciary has the chance to expand scope of reproductive rights
The Surrogacy Act and the Assisted Reproduction Technology Act miss out on addressing some crucial aspects. The SC and Delhi HC now have the opportunity to assess the Acts through the framework of reproductive rights and justice, and extend recent constitutional jurisprudence on the right to privacy, reproductive autonomy, and recognition of non-traditional families
The Surrogacy (Regulation) Act 2021 and the Assisted Reproductive Technology (Regulation) Act 2021 (ART Act) came into force early this year. The Acts aim to regulate the multimillion-dollar industry of reproductive medicine, stipulate who can access assisted reproductive technologies and procedures such as in vitro fertilisation and surrogacy, the conditions under which gamete donation and surrogacy can take place, and specify requirements for clinics to operate.
The Acts allow only married infertile couples and certain categories of women to avail of ARTs and surrogacy. 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.
Reproductive technologies allow people who are unable to conceive or achieve pregnancy, for medical and non-medical reasons, to have biological children. Inequities in access to healthcare, including infertility care, are pervasive and disproportionately impact persons from marginalised contexts. Equitable access to infertility care, including reproductive technologies, is part of the full spectrum of reproductive rights, including the right to make decisions about one’s reproductive life, to health, and to equality and non-discrimination. In India, ARTs are offered by an expensive privatised 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. 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.
Petitions against the Acts have now been filed before the Supreme Court and Delhi High Court by an IVF specialist and persons desiring to become parents, respectively. Both petitions challenge the Acts as being discriminatory and violative of reproductive autonomy and choice by denying access to ARTs to single persons and people in live-in and same-sex relationships. The petitions also oppose the ban on commercial surrogacy, arguing that it is unreasonable and deprives surrogate mothers of reproductive agency.
The petition before the SC raises valid questions about the Acts’ feasibility and workability. 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, but they also imperil the ability of people to have children through ARTs. Shortage of oocytes due to regulatory pressures may lead to a shadow market of gametes. The ART Act also requires the oocyte donor to share their Aadhaar number, which threatens the donors’ privacy.
The petition before the SC raises valid questions about the Acts’ feasibility and workability. 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, but they also imperil the ability of people to have children through ARTs. Shortage of oocytes due to regulatory pressures may lead to a shadow market of gametes. The ART Act also requires the oocyte donor to share their Aadhaar number, which threatens the donors’ privacy.
The Surrogacy and ART Acts have not adequately addressed or settled these and more questions. The SC and Delhi HC now have the opportunity to assess the Acts through the framework of reproductive rights and justice, and extend recent constitutional jurisprudence on the right to privacy, reproductive autonomy, and recognition of non-traditional families.
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