Assisted Reproductive Technology | 11 Jan 2023

Why in News?

The Kerala High Court has said that personal choice to build a family is a fundamental right and fixing an upper age limit for the same was a restriction which needs a relook.

What is the Issue?

• The court passed the directive while disposing of a batch of petitions challenging the age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (ART) (Regulation) Act, 2021, for undergoing the assisted reproductive technology.
• According to the petitioners, prescription of the upper age limit under Section 21 (G) of the ART Act is irrational, arbitrary, unreasonable and violative of their right to reproduction, which is acknowledged as a fundamental right.
• They sought to declare it as unconstitutional.
• The High Court has directed the National Assisted Reproductive Technology and Surrogacy Board to alert the Union government about the need for having a relook at the upper age limit prescribed for using assisted reproductive technology.
• Apart from this, the petitioners have also challenged the provision wherein medical practitioners have been brought within the purview of the Indian Penal Code (IPC) and offences have been made cognizable.
• These provisions are having a chilling effect on IVF practitioners across the country dissuading them from performing their professional duties due to the fear of prosecution.

What are the Provisions of the ART (Regulation) Act, 2021?

• Legal Provisions:
  • The ART (Regulation) Act 2021 provides a system for the implementation of the law on surrogacy by setting up of the National Assisted Reproductive Technology and Surrogacy Board.
  • The Act aims at the regulation and supervision of ART clinics and assisted reproductive technology banks, prevention of misuse, and safe and ethical practice of ART services.
• Definition of ART Services:
  • 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. These include gamete donation (of sperm or egg), in vitro fertilization (IVF), and gestational surrogacy.
  • ART services will be provided through: (i) ART clinics, which offer ART related treatments and procedures, and (ii) ART banks, which collect, screen and store gametes.
• Eligibility Criteria for Donors:
  • A bank may obtain semen from males between 21 and 55 years of age, and eggs from females between 23 and 35 years of age. The woman may donate eggs only once in her life and not more than seven eggs may be retrieved from her. A bank must not supply gamete of a single donor to more than one commissioning party (i.e., couples or single women seeking services).
• Conditions for Offering Services:
  • ART procedures must be conducted only with the written consent of the commissioning parties and the donor. The commissioning party will be required to provide insurance coverage in favour of the egg donor (for any loss, damage, or death).
• Rights of a child born through ART:
  • A child born through ART will be deemed to be a biological child of the commissioning 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.
• Shortcomings:
  • Exclusion of Unmarried and Heterosexual Couples:
    • The Act excludes unmarried men, divorced men, widowed men, unmarried yet cohabiting heterosexual couples, trans persons and homosexual couples (whether married or cohabiting) from availing ART services.
    • This exclusion is relevant as the Surrogacy Act also excludes above said persons from taking recourse to surrogacy as a method of reproduction.
  • Reduces the Reproductive Choices:
    • The Act is also limited to those commissioning couples who are infertile - those who have been unable to conceive after one year of unprotected coitus. Thus, it is limited in its application and significantly reduces the reproductive choices of those excluded.
  • Unregulated Prices:
    • The prices of the services are not regulated, this can certainly be remedied with simple directives.

Way Forward

• Mandatory counselling should be provided by independent organizations, not by clinic ethics committees.
• All ART bodies should be bound by the directions of central and state governments in the national interest, friendly relations with foreign states, public order, decency and morality.
• All the constitutional, medico-legal, ethical and regulatory concerns raised must be thoroughly reviewed before affecting millions.

Source: IE