Assisted Reproductive Technology (Regulation) Act, 2021
May 2, 2022
Introduction
On December 8, 2021, the Assisted Reproductive Technology Act (Regulation), 2021, was passed by the
parliament and received the president’s consent on December 18 in 2021. This was soon followed by the
Surrogacy (Regulation) Act of 2021The Law sets up and monitoring art clinics and has helped assisted
reproductive banks, preventing misuse and safe and ethical practice of art services.
Prior to the tabling of the legislation India recorded over forty thousand Assisted Reproductive Technology,
hence forth referred as ART, Clinics, as per the Ministry of Health, and out of which only around two thousand
were ever enrolled or identified by the Indian Council of Medical Research.
While the two new legislations aim to regulate the market of assisted reproduction, they also raise a number of
concerns in the legal field, including rights, scientific progress, cross-border surrogacy, obligations and ethical
dilemmas.
Important Provisions of the Act
1. Under the Act, every ART clinic and bank must be registered under the National Registry of Banks and
Clinics of India. This Registry, comprising scientific and technical staff, will be a central database for all
facilities providing ART services in India. State governments are required to appoint authorities to facilitate the
registration process. No person/clinic/bank shall render ART procedures unless they are registered with the
Registry.
2. The Act also provides for setting up of a National Reproductive Technology and Surrogacy Board, which
shall lay down a Code of Conduct to be observed by persons working at ART clinics and banks and also set
minimum standards of physical infrastructure, laboratory and diagnostic equipment and expert manpower to be
employed by clinics and banks. The Board shall also supervise the functioning of the Registry.
3. Additionally, the Act also lays down the duties to be performed by ART banks and clinics, which include
ensuring that the commissioning couple, woman and donor are eligible to avail ART services; requiring clinics
to obtain donors’ gametes from banks which shall ensure that the donor has been tested for diseases; providing
counselling services to commissioning couples and woman about the implications of ART; and rights of the
child. A duty is imposed on the clinics and banks to keep the information of commissioning couples and women
confidential and to maintain a grievance redressal cell. The Act also empowers the Central government to make
rules to carry out the provisions of the Act as and when the need may arise.
4. Further, the Act provides for stringent punishment in the event of contravention of its provisions. First-time
offenders may be liable to pay a fine between 5 lakh and 10 lakh, and for subsequent contraventions, the ₹₹
offender may be sentenced to imprisonment of 8 to 12 years and may also be liable to pay a fine of 10 to 12 ₹
lakh. Operators of clinics or banks offering or advertising sex selective ART may face imprisonment of 5 to 10
years or would also be liable to pay a fine of 10 to 25 lakh, or both.₹
Major Shortcomings of the Act
The Major shortcomings of the Assisted Reproductive Technology (Regulation) Act, 2021 are on 3 fronts:
1. Exclusion of many categories individuals who might be interested in availing ART services.
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. With Regards to the surrogacy (Regulation) act of
2021, it places undue restrictions on would-be surrogates’ bodily autonomy and reproductive rights.
The government has offered no logical rationale for why unwed and childless women should not be
surrogates. With the absence of such a justification, the decision of any physically and mentally fit
woman to go ahead with a surrogacy arrangement should be her decision alone.
The supreme court in Suchita Srivastava and Another v Chandigarh Administration (2009) 9
SCC 1, stated that reproductive autonomy is a dimension of personal liberty as guaranteed under article
21.
In this regard, the state’s action to curtail reproductive rights of select group of individuals violates
these fundamental constitutional provisions.
2. The act is limited to commissioning couples who are infertile.
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. Furthermore, by linking the definition of infertility
provided in the Surrogacy (Regulation) Bill 2021 to the Assisted Reproductive Technology
(Regulation) Act, 2021 is overly narrow. Although the preamble of the legislation states “…assisted
reproductive technology is required .. due to infertility, disease or social or medical concerns …” it
covers only “those couples who are not able to conceive after five years of unprotected coitus.” It
does not cover partners who suffer from medical conditions, such as uterine fibroids, that may
allow a woman to conceive but prevent her from carrying a baby to term explicitly or under a
proviso.
The provision restricting assisted reproductive methods to married heterosexual couples within
strict age ranges also discriminates against members of the LGBT community, older couples, and
unmarried people who might seek to have children. The bill not only violates their right to personal
liberty, it goes against the principles of equality provided under Article 14 of the Indian
Constitution.
3. No regulation of the prices of ART services.
Psychologically, the people availing ART services can be under a lot of stress and tension, this makes
them vulnerable. Despite the ART clinics being registered, there is no price regulation for the services
they provide and they can pick up on this exact vulnerability of people interested in availing assisted
reproductive services and can charge whatever amount they want.
Moral and ethical dilemmas
1. With regards to IVF (In Vitro fertilization)
If during the time in which the embryos are in storage, the couple divorces, legal complications may arise as to
the custody of the embryo.
The spare embryos are frozen, discarded, donated or used for experimentation. Since some religions believe that
life begins at conception, it may amount to abortion which is contrary to both law and ethics. Expert indentation
is also not permissible as science cannot experiment with someone with basic human rights without prior
permission.
2. With Regards to AID (Artificial insemination donor)
AID introduces a third party into the reproductive matrix, therefore, someone who donates sperm, is now
contributing genetic material without the intent to parent. Most of the religions also don’t accept the
impregnation of one’s wife by the sperm of third person; it doesn’t make the child one’s own and is looked down
upon as illegitimate
3. With regards to Surrogacy
Ethically also subrogation raises many issues like tempering with the normal process of procreation,
undermining the institution of marriage and family life, treating children as objects of sale etc. Most of the
religions also don’t approve of the idea of subrogation. There is no law concerning this issue until now.
Conclusion
As India is one of the major hubs of these practices, the Act is certainly a step in the right direction. There,
however, is a lot that needs to be changed. There needs to be an inherent dynamic mechanism to ensure that the
law keeps up with rapidly evolving technology, demands of morality and societal changes. The act should also
focus on being more inclusive in nature and including those strands of people in its ambit who had been
excluded earlier. Since This piece of legislation is very closely related to people right to life and personal liberty
(Article 21) as well people’s right to equality (Article 14), it will certainly have to be closely monitored over a
course of time to assess its impact, strengths and shortcomings. It is certainly a landmark legislation that will
pave way for moulding as well as reflecting the future course in this field
(Article 21) as well people’s right to equality (Article 14), it will certainly have to be closely monitored over a
course of time to assess its impact, strengths and shortcomings. It is certainly a landmark legislation that will
pave way for moulding as well as reflecting the future course in this field