India’s much awaited Assisted Reproductive Technology (ART) Regulation Bill 2020, and its Surrogacy Bill 2020, will dent the country’s fertility services market. This might be the price worth paying for an ethically healthy reproductive industry, argues legal researcher Ms. Soumya Singh.
Family planning is an essential pillar of any society. It brings with it the dual responsibility of having children and continuing the family lineage. In a society giving such importance to the process and result of reproduction, a well-established law must be there to guide and protect its citizens.
All over the world, there are people who are not capable of reproducing biologically. The need for assistance in this field has given rise to the industry of ‘Assisted Reproductive Technology’ (ART).
Reproductive tourism, facilitates cross-border fertility practices and ART procedures across the globe. There are many driving factors ensuring the growth of this industry – relaxed legislation and governing laws, as well as the fall in costs and expenses.
India became a hotspot of reproductive tourism, which peaked around 2013 at an estimated value of US$2.3billion. Essential services such as gamete donation, artificial insemination, intra cytoplasmic sperm injection (ICSI), in-vitro fertilisation (IVF), and gestational surrogacy were all offered by the Indian ART clinics.
However, concerns were raised about the relaxed laws and lack of governance in the sector, which often resulted in a gross violation of rights (usually with surrogates), as well as a rise in exploitation rates. This compelled the Indian Government to take action to regulate the industry, resulting in legislation, much of which has been revised over the years.
The latest version is the Assisted Reproductive Technology (Regulation) Bill 2020 and the Surrogacy Bill 2020.
It is imperative to understand that the Government has discussed implementing the ART Bill 2020, before bringing in the Surrogacy Bill 2020 into effect. This is to ensure the overarching protection, correlation and smooth enactment and functioning of the Acts.
This move by the Legislature will have varying impacts, and to understand that better, the prominent features of the Bill affecting reproductive tourism must be looked into first.
The Surrogacy Bill proposes only altruistic surrogacy by ‘willing’ women. Moreover, the provision will be available only to heterosexual married couples and single Indian women (either divorcee or a widow – aged between 35 and 45 years).
While over the years India has witnessed one of the highest growths in the ART sector, especially in the number of the ART cycles performed, there has been a significant reduction recently, which can be attributed to the legislation governing surrogacy. Not extending the facility of surrogacy to foreign nationalities will dent the economy and the reproductive market of India.
ART cycles and other provision are however still available to all, and their relative costs in India, compared to the highly developed nations of the world, are still highly competitive. This could still maintain India’s participation in the global fertility market.
Is this worth such a drastic change in the laws governing the reproductive industry?
We need to remind ourselves about the rise in India of exploitative processes in the sector (coercion, lack of consent, illegal rackets etc.). The Legislature, instead of now only aiming at the commercial scope of the industry, has shifted its focus towards creating a positive social impact. Arguably the provisions are now more closely aligned according to the benefit and protection of rights of the parties involved, and women and children are better protected from exploitation.
Women involved in ART (including surrogacy) will now be legally required to have insurance cover. The children born to the intended parents, as a result of these procedures, will be given complete rights equivalent to that of biological children. Clarifying this provision will drastically eliminate the scope of malpractice and exploitation that existed, especially regarding the children.
After weighing the pros and cons, the likely negative economic impact on India’s fertility services market as a result can be completely justified. It is a step in maintaining the balance between ethics, morality, and social security. It is laudable.
While the Act is much awaited, the nuances of the industry must be considered while drafting the details and the required procedures. Clarity and proportional sternness is going to pave the way for the establishment of an ethically healthy reproductive industry in India.
About the Author:
Ms. Soumya Singh is an undergraduate law student pursuing an integrated B.A LL.B (Hons.) from Kirit P. Mehta School of Law, NMIMS University, in Mumbai, India, with expertise in legal research, especially in the intersection between medicine and law. Email: [email protected]
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