What do the Newly Passed ART and Surrogacy Acts Propose?

By: Khushpreet Kaur
06 Dec 2021 1:23:26 PM CSMC, Chitkara University, Punjab

The Lok Sabha passed the Assisted Reproductive Technology (Regulation) Bill 2020 (ART), on Thursday, in the first week of this year’s winter session, with the proposed legislation setting standards and codes of conduct for fertility clinics and sperm banks in the country. 


The Bill is now before the Rajya Sabha.


Another bill to protect women’s reproductive rights, the Surrogacy (Regulation) Bill 2019, which the Lok Sabha passed on August 5, 2019, will also be simultaneously addressed in the Upper House. This one was referred to a Select Committee, which recommended that the ART Bill be brought first as all technical and medical aspects could subsequently be addressed in the Surrogacy (Regulation) Bill, 2019. 


The Surrogacy Bill refers to surrogacy itself, where a third person is a woman who acts as the surrogate mother. In ART, the commissioning couple avails the treatments and do not necessarily involve a third person. The surrogacy is only open to Indian couples, but ART services are available to married couples, live-in partners, single women, and foreigners.


After the ART Bill is passed, it is estimated that “27.5 million infertile couples will be more sure of the ethical practices in ART clinics and banks", reported a News18 survey.


Under the Bill, ART will include all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into a woman’s reproductive system. It defines an ART bank as an organisation set up to supply sperm or semen, oocytes, or oocyte donors to ART clinics or their patients. ART services will apply to women above the legal age of marriage and below 50, and men above the legal age of marriage and below 55.


The ART and Surrogacy Bills are supposed to protect both the woman and the child's rights. However, the ART clinics also have to ensure that the gamete donor is medically tested and provide professional counselling to the commissioning couples, women, and donors of gametes. The Bill also mandates testing any genetic or hereditary disease of the embryo before implantation.


Opposition members in Lok Sabha have attacked the government for excluding live-in couples, single men and the LGBTQ community from the Bill, attacking the legislation as “discriminatory” and “patriarchal”.


Congress member Karti P Chidambaram said to The Indian Express, “This law has not come from the Hindu liberal traditions. This law has come from the completely regressive, Victorian, and colonial mindset. I will tell you why. This law excludes many people, rather than it includes.”


Dr Gautham Sigamani Pon of the DMK spoke to The Hindu about the powers provided to the national and state boards under the Bill. “I am concerned about the state powers. The present government has taken the sole responsibility of regulating the emerging field. This obsession of this government is very established now,” he said.


According to the Union Health Ministry’s estimate, more than 40,000 clinics are practising ART. These clinics offer operations such as gamete donation, intrauterine insemination, in-vitro-fertilisation, intracytoplasmic sperm injection and preimplantation genetic diagnosis. They serve Indian citizens and foreign nationals. It forms a vital sector in India’s medical tourism industry.


And yet, India, till now, did not have any protocols related to ART. 

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