Over the years, Assisted Reproductive Technology (ART) has turned out to be the boon for those deprived of progeny. ART has grown exponentially in the last few years and is now more and more available to infertile couples in both developed and developing countries. India is poised to be the leader in the world of ART with rapid growths in the number of ART centers and the ART cycles performed annually.
The In Vitro Fertilization (IVF) is the most common form of ART (Assisted Reproductive Technology). IVF is the artificial technique of bestowing parenthood that has brought smile to millions of those failing to conceive naturally. IVF process involves fertilization by combining an egg and sperm in a laboratory dish manually and then transferring the embryo to the uterus. The ART has resulted in a tectonic shift in the way physicians and the general population perceives infertility and ethics.
While a successful pregnancy and a healthy baby born are, of course, the biggest advantages of undertaking an IVF procedure. But several legal and ethical aspects more often than not pose deterrents to its smooth execution. With infertility on the rise due to erratic life style and late marriages, more and more couples are opting for ART or adopted babies. The safe success rate of ART is 40%. ART today is a 30 billion industry in India with over 3000 clinics across the country. Infertility is the commonest Medical problem in 30-40 years of age group of couples in India. The expansion and proliferation of assisted reproductive technologies (ART) has been facilitated by economic globalisation wherein reproductive tissues like sperm, ova, and uteri are traded like any other commodity to make profit, says a new study, adding that India has emerged as the surrogacy outsourcing capital of the world.
In 2008, the Indian Council of Medical Research (ICMR) developed a draft for Assisted Reproductive Technology (Regulation) Bill and sent to the Ministry of Health & Family Welfare, which was then been revised by the Ministry of Law & Justice as Assisted Reproductive Technology (Regulation) Bill-2013. Last year, the Assisted Reproductive Technology (Regulation) Bill-2016 came before the Cabinet for consideration. The ART (Regulation) Bill proposed to establish National Board, State Boards and National Registry of (ART) in India for accreditation and supervision of ART clinics and ART Banks, ensuring that services provided by these are ethical and that the medical, social and legal rights of all the concerned are protected with maximum benefit to all the stakeholders within a recognized framework of ethics and good medical practices. This resulted into the Surrogacy (Regulation) Bill 2016 by the Health Ministry that proposed to legalize altruistic, domestic surrogacy. The bill although seeks to control exploitation of surrogate child and mother for unethical purposes. Despite this the bill in opinion of many ART experts fails to address various issues including transparency and fair practices.
One of the major issues is of that of lack of screening guidelines of couples based their social economic background, criminal records in past, their health, age, and family information check before they are permitted to commission surrogacy. In the absence of such screening guidelines the surrogate child’s interests suffers considerable risk from being put under the guardianship of those who lack credibility or even be detrimental to the child’s security.
Although the Bill prohibits and penalizes abandonment rejection of the surrogate by couple post-birth. The bill defines “abandoned child” by defining grounds of abandonment as “physical mental defect or infirmity, or being more than one in number” excluding “sex of the child” among the same. In this aspect the Bill does not address the plight of such surrogate child found non-genetically connected with either of the parents post birth due to mishaps arising out of switching or swapping of donated frozen gametes of couples in clinics or labs, sperm banks. The bill is unclear if such a surrogate child is allowed to be abandoned or rejected or left in adoption home or orphanage.
Among the biggest misses of the bill is based on sex selective surrogacy or family balancing surrogacy to have child of a pre-determined sex, in which the earlier ART Bill prohibited penalized the same by adding relevant provisions of Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 in ART , Surrogacy. Among other offences and punishments, the Bill does not talk about are “trafficking or sale, abduction of surrogate child” in guise of either altruistic or commercial surrogacy arrangement in any form under the same.
Apart from the above mentioned aspects there are various other aspects in relation to the rights of the surrogate mother and the child the Bill lacks in clarity and transparency required to protect these rights sufficiently in case of legal issues arise. This it is imperative that before the bill is enacted these aspects are ironed out for it to be effectively regulate the ART process in the country.