A STUDY ON ASSISTED REPRODUCTIVE LAWS AND THE RIGHTS OF THE CHILDREN BORN OUT OF ART – AN INDIAN PERSPECTIVE

This article is written by Mustafa Khan of Integral University, Lucknow, an intern under Legal Vidhiya

Abstract

The landscape of Assisted Reproductive Technology (ART) in India has undergone profound transformations, reshaping traditional notions of parenthood and family structures. This legal research delves into the complex intersection of medical science and the law, examining the implications of the Assisted Reproductive Technology Act, 2021. The Act, a pivotal development in regulating ART practices, reflects a significant step forward but reveals certain weaknesses, including gaps in professional qualifications, unaddressed adoption regulations, and the evolving landscape of reproductive rights for LGBTQIA+ individuals. The research underscores the dynamic nature of ART procedures, delinking social parenthood from biological childbirth, while emphasizing the urgent need for a nuanced and adaptive legal framework. As the law strives to catch up with rapidly advancing medical technologies and changing societal norms, ongoing evaluation and refinement are crucial to ensure comprehensive protections for all stakeholders involved in assisted reproduction.

Keywords

Assisted Reproductive Technology (ART) Act, Surrogacy Regulation, Reproductive Rights, Legal Framework, Genetic Interventions

Introduction

In the rapidly evolving landscape of reproductive medicine, Assisted Reproductive Technology (ART) has emerged as a powerful tool reshaping conventional notions of family and parenthood. The Assisted Reproductive Technology Act, 2021, in India represents a pivotal legislative response to the ethical, legal, and social intricacies surrounding ART procedures. This legislation delves into various facets of assisted reproduction, addressing concerns related to in vitro fertilization, surrogacy, genetic interventions, and more. As we embark on an exploration of this legal framework, the intricate tapestry of rights, responsibilities, and ethical considerations unfolds, prompting a closer examination of the implications for individuals, families, and society at large.

In the ever-evolving realm of reproductive medicine, Assisted Reproductive Technology (ART) stands as a transformative force challenging traditional concepts of family and parenthood. The advent of in vitro fertilization, surrogacy, and genetic interventions has propelled society into uncharted territories, prompting the need for comprehensive legal frameworks to navigate the complex landscape of assisted reproduction. The Assisted Reproductive Technology Act, 2021, in India represents a pivotal response to these challenges, seeking to balance the advancements in medical science with the ethical considerations, legal boundaries, and societal implications inherent in ART procedures. As we delve into the intricacies of this legislation, we embark on a journey to unravel the rights, responsibilities, and implications woven into the fabric of assisted reproduction, casting light on the dynamic interplay between technology, law, and the deeply personal quest for parenthood.

Meaning: Assisted Reproductive Technology (ART)

In the contemporary context of rising infertility rates in India, Assisted Reproductive Technology (ART) emerges as a transformative solution, employing advanced medical techniques to facilitate pregnancy. ART encompasses a spectrum of procedures, including in vitro fertilization (IVF), artificial insemination, and surrogacy.[1] The World Health Organization defines infertility as the inability to conceive after a year without contraception, and ART serves as a crucial avenue for those facing this challenge.

The intricate process of ART involves combining a man’s sperm with a woman’s egg to generate embryos, which are then carefully transferred back into the woman’s body. Notably, In Vitro Fertilization (IVF) stands out as the most effective and widely utilized ART procedure. Beyond conventional methods,[2] ART may incorporate donor eggs, sperm, or frozen embryos, and surrogacy becomes a viable option. From a legal perspective, the field introduces complexities related to parental rights, disclosure of genetic origins, and the evolving regulatory landscape for reproductive technologies. As we navigate the multifaceted dimensions of ART, it becomes evident that a nuanced understanding is essential, not only for its medical intricacies but also to address the legal implications and safeguard the rights and welfare of all involved parties.

Rights of Children Born Out of ART

Children conceived through Assisted Reproductive Technology (ART), a realm encompassing techniques like in-vitro fertilization, surrogacy, and gamete donation, often encounter a unique set of legal and social challenges related to their identity, parentage, inheritance, and citizenship. Acknowledging the intricate landscape surrounding these issues, the Indian government took a significant step by enacting the Assisted Reproductive Technology Act in 2021. This legislative framework serves as a regulatory cornerstone, overseeing the provision of ART services within the country.[3]

The ART Act specifically addresses the rights and well-being of children born through these advanced medical procedures, along with considering the interests of donors, surrogates, and intended parents. A pivotal provision within the Act declares that a child born through ART is deemed the biological offspring of the commissioning couple, thereby securing equivalent rights as a naturally born child. To ensure the protection of these rights, the legislation unequivocally prohibits abandonment, exploitation, or discrimination against any child conceived through ART. Additionally, the Act introduces a robust regulatory structure, mandating the registration and accreditation of all ART clinics and banks. Furthermore, it establishes a national registry tasked with monitoring and supervising the operations of these entities, aiming to uphold the integrity of the ART process and safeguard the rights of all involved parties.[4]

The Assisted Reproductive Technology (Regulation) Act, 2021

In a landmark development in 2021, the Indian Parliament enacted the Assisted Reproductive Technology (Regulation) Act, 2021, hereafter referred to as the ‘ART Act.’ This legislation, receiving presidential assent on December 18, 2021, and coming into force on January 25, 2022, marked a significant stride in regulating and supervising Assisted Reproductive Technology (ART) practices in India. The primary objectives of the ART Act include the prevention of misuse, ensuring safe and ethical ART practices, and addressing the complex issues surrounding reproductive help, particularly in cases where ART is essential due to infertility, medical concerns, or the need for gamete preservation.

Defining Assisted Reproductive Technology (Section 2): Section 2 of the ART Act meticulously defines Assisted Reproductive Technology, encompassing procedures manipulating sperm or oocytes outside the human body, ultimately involving the transfer of gametes or embryos into a woman’s reproductive system. This definition forms the foundation for the regulatory framework established by the Act.

Classifications and Terminology (Sections 3, 4, 5): Sections 3 and 4 establish clear classifications, designating entities as Assisted Reproductive Technology Banks and Assisted Reproductive Technology Clinics, respectively. Assisted Reproductive Technology Banks are responsible for gamete collection, storage, and supply, while Assisted Reproductive Technology Clinics encompass premises and practitioners registered with the National Medical Commission. Section 5 introduces the term ‘commissioning couple,’ recognizing the rights and aspirations of infertile married couples seeking ART services.

Regulatory Bodies (Sections 15(1), 24(1)): The ART Act establishes regulatory bodies at both the national and state levels. Section 15(1) outlines the creation of the ‘National Assisted Reproductive Technology and Surrogacy Board’ tasked with advising the government on surrogacy policy matters and overseeing the implementation of the ART Act. Section 24(1) establishes ‘State Assisted Reproductive Technology and Surrogacy Boards’ to act as state-level bodies following policies and plans laid by the National Board for ART Clinics and Banks.

National Assisted Reproductive Technology and Surrogacy Registry (Section 9): Section 9 mandates the creation of a National Assisted Reproductive Technology and Surrogacy Registry, serving as a central database for information on clinics, banks, and the outcomes of ART services. This registry functions as a vital resource for the National Board, aiding in policy-making, guideline formulation, and research in assisted reproduction.

Appropriate ART Authorities (Sections 13, 14): Sections 13 and 14 detail the responsibilities of the Appropriate ART Authorities, including the power to grant, suspend, or cancel the registration of clinics or banks. These authorities play a crucial role in enforcing standards, investigating complaints, and recommending modifications to the National Board and State Boards.

Registration and Inspection (Sections 16(1), 20): Section 16(1) outlines the process of registration for ART clinics or banks, emphasizing online registration within 60 days of establishment. The registration is subject to satisfaction of the Appropriate Authority, and a valid registration is essential for conducting ART-related procedures. Section 20 empowers the Appropriate Authority to summon persons, produce documents, and search suspected places violating the provisions of the ART Act.

Section 29 – Prohibition on Sex Selection: Section 29 prohibits the determination of the sex of a child during ART procedures, aligning with the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. It further emphasizes the prohibition of the sale, transfer, or use of gametes, zygotes, and embryos for commercial purposes.

Offenses by Registered Medical Practitioners: Registered medical practitioners under the ART Act are bound by specific duties and prohibitions. Offenses committed by them include:

1. Abandonment, Exploitation, or Disownment: Practitioners must not abandon, disown, or exploit a child born through ART.
2. Prohibition of Sale or Trading in Human Embryos or Gametes: It is strictly prohibited to run an agency, racket, or organization for selling, purchasing, or trading in human embryos or gametes.
3. Importation of Human Embryos or Gametes: Importing or assisting in the importation of human embryos or gametes is forbidden.
4. Exploitation of Commissioning Couples, Women, or Gamete Donors: Medical practitioners must not exploit commissioning couples, women, or gamete donors in any form.
5. Transfer of Human Embryos into Male Persons or Animals: Practitioners cannot transfer a human embryo into a male person or an animal.
6. Sale of Human Embryos or Gametes for Research: Selling any human embryo or gamete for research purposes is strictly prohibited.
7. Sex Selection and Determination: Any act to determine the sex of the child during ART procedures or to ensure or increase the probability of a particular sex is prohibited, except for diagnosing, preventing, or treating sex-linked disorders or diseases.

Penalties for Offenses: Offenders may face fines ranging from five lakh rupees to twenty lakh rupees, imprisonment for a term not less than three years but may extend to eight years for subsequent contraventions, as specified in the ART Act. The Act ensures strict consequences for violations, emphasizing the gravity of ethical and legal adherence in the realm of assisted reproduction.[5]

Rights of Children Born Through ART Under the Assisted Reproductive Technology (Regulation) Act, 2021

In the intricate landscape of Assisted Reproductive Technology (ART), the rights bestowed upon a child born through these innovative procedures hold paramount significance. Enshrined within the Assisted Reproductive Technology (Regulation) Act, 2021, these rights serve as a protective framework, ensuring the child’s legal status and equitable treatment. According to the provisions of the Act, a child born through ART is unequivocally recognized as the biological child of the commissioning couple—the individuals who sought the services of ART. This legal acknowledgment extends the child’s entitlement to the full spectrum of rights and privileges afforded to a natural-born child, aligning with the prevailing laws in force.

Crucially, these rights encompass inheritance, citizenship, and the potential for adoption by the commissioning couple. The Act safeguards against abandonment, exploitation, or discrimination directed at the child, fortifying the principle that the child’s origin through ART should not diminish their legal standing or societal acceptance. Furthermore, the legislation delineates a vital provision addressing the parental rights of the donor—the individual contributing the gamete or embryo. The donor is mandated to relinquish all parental rights over the child, establishing a clear legal demarcation and safeguarding the interests of both the child and the involved parties. In essence, these legal provisions underscore the commitment to ensuring the comprehensive protection and integration of children born through ART into the familial and societal fabric.

As the field of assisted reproduction advances, the legal landscape meticulously navigates the delicate balance between technological advancements and safeguarding the inherent rights and dignity of those born through these groundbreaking procedures. The ART Act, with its nuanced provisions, not only recognizes the biological ties between the child and the commissioning couple but also reinforces the child’s entitlement to a life free from discrimination or exploitation. In essence, it charts a legal course that aligns with the evolving dynamics of family structures and strives to provide equitable rights and protections for children conceived through the marvels of ART.

Strengths and Weaknesses of the Assisted Reproductive Technology (Regulation) Act, 2021

The Assisted Reproductive Technology (Regulation) Act, 2021 exhibits both strengths and weaknesses in its approach to governing assisted reproduction in India.

Strengths:

The Act’s strength lies in its comprehensive framework, comprising six chapters and forty-six paragraphs, offering a robust legal foundation for the complex landscape of Assisted Reproductive Technology (ART). Clear definitions in Chapter I contribute to a nuanced understanding of intricate concepts, ensuring clarity in interpretation. The Act’s regulatory ambit extends across ART clinics, banks, and research, emphasizing ethical practices and safeguarding the interests of all stakeholders involved.[6] The establishment of national and state ART and surrogacy boards, coupled with provisions for registration and the creation of a national ART registry, bolsters the regulatory framework. Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1[7]. this case regarding the retroactive nature of legal fiction under Section 6 of the Hindu Succession Act, 1956 it clarifies the retroactive application of the amended Act. While not directly tied to the ART Act, this precedent emphasizes the importance of understanding retroactive legal provisions, an aspect that might be relevant in analyzing the application of amendments in the ART Act. This comprehensive approach fosters accountability and transparency in the domain of assisted reproduction, promoting responsible practices and protecting the rights of those engaged in ART processes.

Weaknesses:

However, the Act has notable weaknesses that demand attention. It lacks detailed provisions regarding the qualification, experience, and desired skills of professionals working in ART clinics and banks. Despite a brief mention in Section 5 subsection (c) of Chapter II regarding infrastructure and manpower, a more exhaustive exploration of the qualifications of key personnel is essential for comprehensive regulation. Another significant weakness is the Act’s failure to address the realm of adoption, a critical aspect as many couples turn to adoption following unsuccessful ART attempts[8]. In the case of “Arun Muthuvel vs Union Of India,”[9] filed as a Public Interest Litigation (PIL) in the Supreme Court of India, the petitioner, Arun Muthuvel, an IVF specialist and managing director of a fertility clinic in Chennai, challenges the constitutionality of specific provisions in both the Surrogacy Act, 2021, and the Assisted Reproductive Technology Act, 2021. The contested provisions include eligibility criteria for surrogacy, age thresholds for intending couples and surrogate mothers, the ban on commercial surrogacy payments, mandatory genetic links, and stringent regulations for Assisted Reproductive Technology (ART) clinics. The petitioner argues that these provisions infringe upon fundamental rights, particularly the right to privacy and reproductive rights of women, creating arbitrary and discriminatory classifications. The legal challenge is rooted in constitutional grounds, emphasizing inconsistencies with international conventions on surrogacy and highlighting the confusion arising from contradictions between the two Acts, impacting the practice and provision of ART services.[10]

In Navtej Singh Johar v. UOI,[11] the Supreme Court decriminalized homosexuality. However, the debate suggests that the right to marry for homosexuals is not officially recognized, potentially affecting their eligibility as a commissioning couple under the ART Act. And, In Ayesha v. Ozir Hassan[12] a long-term live-in couple’s status was elevated to that of a husband and wife. This case emphasizes the legal recognition of relationships, and the debate suggests a discrepancy in allowing live-in couples to pursue ART procedures. In, S.PS. Balasubramanyam v. Suruttayan[13] The debate suggests that despite this legal recognition, the ART Act might not provide the same rights to live-in couples in pursuing ART techniques, creating a potential discrepancy. In Mausami Moitra Ganguli v. Jayanti Ganguli[14],The debate argues that stable homosexual couples should be allowed to pursue ART techniques, invoking the principles laid out in this case to support the claim. The absence of specific guidelines in this area leaves a substantial gap in the regulatory framework. These identified weaknesses underscore the need for further elaboration and specificity within the Act to enhance its overall effectiveness in governing the multifaceted field of assisted reproduction.

Conclusion

In conclusion, the dynamic landscape of Assisted Reproductive Technology (ART) has undeniably transformed traditional notions of parenthood, challenging societal perceptions and expanding individual rights. The evolving relationship between women and motherhood, facilitated by ART procedures, has severed the societal link between biological childbirth and social parenthood. However, this revolutionary shift has outpaced the legal frameworks governing ART in India. Despite the surging popularity of these procedures, a lack of comprehensive regulations has given rise to challenges, including the potential exploitation of donors and surrogates, inadequate protections for children born through ART, unregulated medical tourism, and a dearth of recourse for commissioning couples. The delicate balance between the interests of commissioning couples, children, donors, the medical fraternity, and society at large necessitates a robust regulatory framework, as highlighted by the recent legislation. While the Assisted Reproductive Technology Act, 2021 is a significant step forward, continuous monitoring and adaptation are crucial to ensure its efficacy in tandem with rapidly evolving medical technology, evolving societal norms, and the ethical considerations inherent in this intricate intersection of law and medical science. This landmark legislation serves as a foundation, inviting ongoing evaluation and refinement to shape the future of assisted reproductive practices in India.

Furthermore, a critical examination of the weaknesses in the Act, such as the lack of specific qualifications and experience requirements for professionals in ART clinics, and the omission of regulations addressing adoption alongside ART and surrogacy, underscores the need for comprehensive and nuanced legal frameworks. These gaps, if left unaddressed, could potentially compromise the rights and well-being of all stakeholders involved in ART processes. As the legal landscape continues to grapple with the intricacies of assisted reproduction, ongoing efforts to strengthen and refine the regulatory framework will be imperative to ensure that the law effectively safeguards the interests of all parties involved, while keeping pace with the evolving landscape of medical science and societal expectations.

References

1. Shaping the Future: The Role of Assisted Reproductive Technology in India | Milann Last Visited 22.01.24
2. Assisted Reproductive Technology Regulations (ART), 2023 (civilsdaily.com) Last Visited 22.01.24
3. Children born out of IVF, other assisted methods to enjoy rights at par with biological ones | Mint (livemint.com) Last Visited 22.01.24
4. Assisted Reproductive Technology – ClearIAS Last Visited 22.01.24
5. THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021 | Department of Health Research | MoHFW | Government of India (dhr.gov.in) Last Visited 22.01.24
6. Assisted Reproductive Technology (Regulation) Act, 2021: A timely legislation for a timeless problem (barandbench.com) Last Visited 23.01.24
7. https://indiankanoon.org/doc/67965481/ Last Visited 23.01.24
8. Kashyap, S., Tripathi, P. Assisted Reproductive Technology (Regulation) Act 2021: Critique and Contestations. ABR (2023). https://doi.org/10.1007/s41649-023-00253-6 Last Visited 23.01.24
9. Arun Muthuvel vs Union Of India on 18 October, 2023 (indiankanoon.org) Last Visited 23.01.24
10. SC seeks Centre’s reply on plea challenging blanket ban on commercial surrogacy | Latest News India – Hindustan Times Last Visited 24.01.24
11. Navtej Singh Johar vs Union Of India Ministry Of Law And … on 6 September, 2018 (indiankanoon.org) Last Visited 24.01.24
12. Aysha v. Ozir Hassan . | Madras High Court | Judgment | Law | CaseMine Last Visited 24.01.24
13. S.P.S. Balasubramanyam vs Suruttayan on 13 October, 1993 (indiankanoon.org) Last Visited 24.01.24
14. Mausami Moitra Ganguli vs Jayanti Ganguli on 12 May, 2008 (indiankanoon.org) Last Visited 24.01.24

---

[1] Shaping the Future: The Role of Assisted Reproductive Technology in India | Milann Last Visited 22.01.24

[2] Assisted Reproductive Technology Regulations (ART), 2023 (civilsdaily.com) Last Visited 22.01.24

[3] Children born out of IVF, other assisted methods to enjoy rights at par with biological ones | Mint (livemint.com) Last Visited 22.01.24

[4] Assisted Reproductive Technology – ClearIAS Last Visited 22.01.24

[5] THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021 | Department of Health Research | MoHFW | Government of India (dhr.gov.in) Last Visited 22.01.24

[6] Assisted Reproductive Technology (Regulation) Act, 2021: A timely legislation for a timeless problem (barandbench.com) Last Visited 23.01.24

[7] https://indiankanoon.org/doc/67965481/ Last Visited 23.01.24

[8] Kashyap, S., Tripathi, P. Assisted Reproductive Technology (Regulation) Act 2021: Critique and Contestations. ABR (2023). https://doi.org/10.1007/s41649-023-00253-6 Last Visited 23.01.24

[9] Arun Muthuvel vs Union Of India on 18 October, 2023 (indiankanoon.org) Last Visited 23.01.24

[10] SC seeks Centre’s reply on plea challenging blanket ban on commercial surrogacy | Latest News India – Hindustan Times Last Visited 24.01.24

[11] Navtej Singh Johar vs Union Of India Ministry Of Law And … on 6 September, 2018 (indiankanoon.org) Last Visited 24.01.24

[12] Aysha v. Ozir Hassan. | Madras High Court | Judgment | Law | CaseMine Last Visited 24.01.24

[13] S.P.S. Balasubramanyam vs Suruttayan on 13 October, 1993 (indiankanoon.org) Last Visited 24.01.24

[14] Mausami Moitra Ganguli vs Jayanti Ganguli on 12 May, 2008 (indiankanoon.org) Last Visited 24.01.24

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.