Assisted Reproductive Technology (Regulation) Act, 2021: Progressive or Regressive

Introduction

Recently both the houses of the parliament passed the Assisted Reproductive Technology (Regulation) Act, 2021 (hereinafter ‘ART Act’) and the same was assented by the President on 18th December 2021.

It was in the year sept 2020 when the ART Act was first tabled in the Lok Sabha with an objective of regulating the clinics and banks that exclusively deals with Assisted Reproductive Technology and making sure that no unethical malpractices are being followed. However, in the opinion of the legislature the bill was not fit to be enforceable.

In continuation of the same, a department related standing committee was constituted. The committee was given the work of filling the gap in the Bill and presenting it before the Parliament. The committee in its 129th report did a remarkable job in dealing with various issues that were put forth by the legislature and concerned stakeholders with respect to the Bill, however major concerns were left unnoticed.

Aspect related to equality, and the rights of the LGBTQIA+ community, live-in couples, and single male parents were not given heed by the committee and the legislature. The author in this blog will be elucidating how the ART Act goes against the spirit of equality and the established law regarding the rights of same-sex couples.

What Does The Act Says?

If we exhaustively read and analyze the provisions of the ART(REGULATION) Act, 2021 Act, provision 2(1)(e) lays down the definition of the term ‘commissioning couple’. The meaning of the term refers to “an infertile married couple who approach an ART clinic or ART bank for obtaining the services authorized of the said bank or clinic”.

Moreover, provision 2(1) of the act uses a gender-specific term i.e., ‘woman’ under clause 2(1)(u) of the said Act. These provisions clearly exclude the persons belonging to LGBTQIA+ community, live-in couples, and single male parents from getting the benefit of ART clinics and banks.

This particular exclusion goes against the spirit of equality and individual rights. Keeping this scenario in mind the consequences of such exclusion can be adverse, as people may resort to unethical practices and black-marketing which the ART Act seeks to eradicate in the first place. Further, the constitutionality of the above-mentioned provisions of the ART Act can be challenged.

Significance of Assisted Reproductive Technology (Regulation) Act, 2021

Prior to the art regulation there were ICMR and MCI guidelines but to bring down all the assisting facilities at one place, the regulation has been made, as earlier there was no authority to look after the same.

It has laid its major focus on the ART clinics and the banks which are responsible for the storage and supplying of the gametes, which are the sperms and the oocytes as well as the clinics which are responsible for performing the techniques to help the concerned couple dealing with impotence.

It has to be noted that commercial surrogacy has been banned by the act, given to the fact that the way it had been used in the Anand district of Gujarat, which led to fatal conditions of the health of the women who used to agree to become a surrogate mother within a month of their delivery. Not just this the act has also taken into the consideration the MTP act and the PCPNDT Act, and it is always read together with the surrogacy act, which is one of the most common ART methods.

Act and its Constitutionality

Right to dignified life and identity is a sine qua non for every individual in the society. Whether it comes to right to reproductive health, liberty to form a family regardless of gender biasness, sexual orientation, marital status, the principle remains the same that is the protection of fundamental rights of the individual.

In the Lok Sabha debate when the act was put into place it was said that the art regulation in a way, formally takes a biased approach when it comes to the citizens who are belonging to the LGBTQIA+ community.

Firstly, when it comes to the definition of the commissioning couple in the regulation then it says “an infertile married couple”. As per the decision in Navtej Singh Johar v. UOI, homosexuality has been decriminalized but the right to marry of the homosexuals is still not recognized , which means that even if they think of going through any of these techniques they “can’t”. In India, marriage has been recognized between a male and a female only.

Secondly, the live in couples who due to some reasons are not able to marry but have been in a relationship for a long period of time, too cannot go through any of these techniques. Though, in the case of Ayesha v. Ozir Hassan, when a long-term live-in couple had a child, their status was elevated to that of a husband and wife.

The Apex Court, in the case of S.PS. Balasubramanyam v. Suruttayan, held that the children born out of a live-in relationship are considered to be equivalent to biological children of a married couple. Even in the case of live in relationships, it has been said by the apex court in the case of Tulsa & Ors. v. Durghatiya & Ors. that there is presumption of marriage for couples living together. The problem associated with the live in couples being not granted the right to pursue ART techniques.

The Standing Committee in its report, mentions that it is an established fact that for the Indian Family structure and customs accepting a child whose parents are together but not legally married is difficult.

The legislature through this act wants to ensure, that if a child is born through ART process, it further does not go through any legal issue.  The act wants to ensure that the child is born and raised up in a family.  The reason for restricting the homosexual couples is based in the ground that the notion of marriage in our society is connected to the concept of a male and a female marrying each other.

The act also bars the single parents from becoming a parent through surrogacy. While section 7 and 8 of the Hindu Adoptions mad Maintenance Act, 1956 and Section 57 of the Juvenile justice(care and Protection of Children) Act, 2015 allows single and divorced individuals to adopt children. The very rationale of these act allowing single parents to cater a child makes a strong case for single and divorced individuals, irrespective of their gender to be incorporated under the disputed Act,

Article 14 is usually taken into account when the fundamental right of equality is sought to be established. It is principled as, if the differentiation or distinction that is created by the state is not connected to the object that is being sought, which means if there is no reasonableness, then the distinction can be said to be violative of article 14.

Can Child Welfare Be A Reason For Restriction?

The distinctions made in the ACT can be reasonable on the ground that they are helping towards child welfare in a way that safe space is created for them and no further legal issues are created as the legality of the status of the child always comes into question.

It was stated by the committee, it would not be feasible to allow same sex couples and live-in couples to use ART technique facilities as welfare of the child so born would be jeopardized, also there are parentage difficulties. But the proposition of this kind is at loggerheads with the well-established principles of what constitutes child welfare.

American Sociological Association (ASA) submitted a brief to the United States Supreme court regarding the well-being of children raised within same sex-parent families in relation to cases related Defense of Marriage Act.

The brief concludes that children living within same-sex parent households fare just, as well as those children residing within different-sex parent households over a wide array of well-being measures: academic performance, cognitive development, social development, psychological health, early sexual activity, and substance abuse. Differences that exist in child well-being are largely due to socioeconomic circumstances and family stability.

Also, in the case of Mausami Moitra Ganguli v. Jayanti Ganguli, the Supreme Court held that a child’s welfare is a holistic term that comprises of stability and security, affection, and an atmosphere conducive to a child’s healthy growth. There’s no reason to believe that stable homosexual couples can’t raise a child with the same upbringing as a heterosexual marriage. Independence of the gender or sexual orientation of the parents, the circumstances of a child’s upbringing is ultimately a consequence of prevailing circumstances and individual temperament of the child and parents.

 Conclusion

To sum up, the author seeks to establish that sexual orientation, gender, marital status cannot be a factor to deny the basic Human Right of a individual. These factors have no connection to the upbringing and welfare of the child. The legislature by its exclusionary policy has depicted its orthodox, legally irrational and unscientific way of thinking.

The Supreme Court of India through catena of judgments attempted to eliminate the moralistic restriction on liberty. The ACT in its current framework is totally unacceptable, therefore the author proposes to make the Act gender neutral.

Amendment should be made, and the terms “infertile couple” and “women” in Section 2(1) (e) and Section (1)(u) respectively to be replaced by “couple or individual” to include single parent, live-in couples and same sex couples thereby paving a way for achieving the goals of Child welfare.

The article has been contributed by Shianjany Pradhan and Shashank Mohan Prasad, students at Symbiosis Law School Noida and Damodaram Sanjivayya National Law University.